Weil v. Kreutzer

• Decision Date: 29 September 1909
• Parties: WEIL v. KREUTZER.
• Court: Kentucky Court of Appeals

121 S.W. 471

WEIL v. KREUTZER.

Court of Appeals of Kentucky.

September 29, 1909

Appeal from Circuit Court, McCracken County.

"To be officially reported."

Action by George Kreutzer against Jesse Weil. From a judgment for plaintiff, defendant appeals. Affirmed.

J. D Mocquot, for appellant.

R. T Lightfoot, for appellee.

BARKER J.

The appellant, Jesse Weil, while propelling his automobile along Kentucky avenue, in the city of Paducah, collided with the appellee, George Kreutzer, who was walking across the street inflicting upon his body severe injuries. To recover damages for the injuries so inflicted Kreutzer instituted this action, alleging in his petition that the collision and resulting injury were occasioned by the negligence of the appellant, Jesse Weil. To this action the defendant (appellant) filed an answer controverting the material allegations of the petition, and in the second paragraph pleading contributory negligence upon the part of the plaintiff. The issues having been completed by reply, a trial was had, which resulted in a verdict in favor of the plaintiff (appellee) for $1,000. To reverse the judgment based upon this verdict this appeal is prosecuted.

It is insisted by the appellant that the judgment should be reversed because the court failed and refused to give him a jury properly drawn from the jury box, but, instead impaneled a jury made up in part of bystanders. The bill of exceptions shows that the court had two juries impaneled; that at the time this case was called for trial one of them was out considering a case which had been submitted to it, and that it was necessary, or thought to be necessary by the trial judge, to impanel a jury partially made up of bystanders, and this was done over the objection of the defendant. After the case had been stated, the jury which had theretofore been out came into court and reported a verdict in the case it was considering. Thereupon the trial judge offered to set aside the order impaneling the jury of bystanders and to give the defendant a jury drawn from the box in accordance with the provisions of the statute. This was declined by the defendant, who objected to the proposition of the court, and thereupon the case proceeded to judgment, with the jury partially made up of bystanders. We think the offer of the court to recede from its erroneous position in regard to the jury was all the defendant had a right to demand under the circumstances; and, if he wanted a jury drawn from the box according to the letter of the statute, he should have accepted the court's offer to furnish him such a jury, although the case had proceeded somewhat before the improperly organized jury. The refusal of the defendant to accept the offer of the court for a properly constituted jury estops him from now complaining of the jury of bystanders. He cannot legally trifle with the court by experimenting with the bystanders' jury, and, when unsuccessful, complain of an error which his own obstinacy prevented from being corrected.

The verdict of $1,000 was not excessive....