Watson v. St. Paul City Ry. Co.

• Decision Date: 18 November 1889
• Citation: 42 Minn. 46
• Parties: GEORGE H. WATSON <I>vs.</I> ST. PAUL CITY RAILWAY COMPANY.
• Court: Minnesota Supreme Court

Page 46

42 Minn. 46

GEORGE H. WATSONvs.

ST. PAUL CITY RAILWAY COMPANY.

Supreme Court of Minnesota.

November 18, 1889.

Appeal by defendant from an order of the district court for Ramsey county, Wilkin, J., presiding, refusing a new trial after verdict of $4,000 for plaintiff. The action was for personal injuries to plaintiff, a passenger in a car upon defendant's cable line, resulting from alleged negligence of defendant. The remarks of plaintiff's counsel referred to in the opinion, were made in his closing address to the jury, and were to the effect that there was no defence and none should have been attempted; and that in a case which he defended for the Northern Pacific Railroad Co. where it was admitted that plaintiff was entitled to recover, and the only contest was as to the extent of his injuries, the verdict was for $8,000.

H. J. Horn, for appellant.

C. D. & Thos. D. O'Brien, for respondent.

VANDERBURGH, J.

1. A struck jury was summoned in this case, and upon the trial, the requisite number not appearing, the sheriff was ordered to summon a sufficient number of talesmen to complete the panel. The court refused to allow any peremptory challenges to any of the jurors, on the ground that such challenges are not allowed or contemplated by the statute providing for such juries. We think the court ruled correctly. The provision for striking takes the place of the right to peremptory challenges. 1 Thomp. Trials, § 43; Blanchard v. Brown, 1 Wall. Jr. 309; Branch v. Dawson, 36 Minn. 193, (30 N. W. Rep. 545.) Our statute (Gen. St. 1878, c. 71, § 15) is copied from that of Ohio, (Laws 1853,) except that in the original act there is no provision for calling in talesmen. It is held there that the panel must be made up of the struck jurors, and if 12 do not appear, or are not brought in, the places of absentees cannot be filled by talesmen, and that there cannot be a struck jury, under the statute, unless made up of the number originally selected. Cleveland, etc., R. Co. v. Stanley, 7 Ohio St. 155. But, under the added provision for talesmen in the statute as adopted by the legislature in our state, talesmen may be summoned if a sufficient number of the struck jurors do not appear; and the jury still retains its distinctive character as a struck jury under the statute, in which it is clear that no provision was made for peremptory challenges, and no such challenges were contemplated. The procedure, in its essential features, resembles that for the selection of jurors in the justice's court. Gen. St. c. 65, § 58. We see no reason why the court might not, on the application of either party, compel the appearance of struck jurors who absent themselves, so that in practice talesmen may be avoided, or, at least, a disproportionate number of them need not necessarily be called, unless the parties consent. But, if peremptory challenges are to be allowed in such cases, then each party may exercise the full number allowed in civil actions, though there be but a single vacancy to be filled. It is very clear, we think, that such challenges are not admissible in the case of struck...