192 Mo. App. 665 | Mo. Ct. App. | 1915
This is a suit for damages under the wrongful death statute. Plaintiff recovered and defendant prosecutes the appeal.
Plaintiff’s little girl, two years of age, was run upon and killed by one of defendant’s street cars. The child was at play for the moment in Twelfth street in the city of St. Louis, between Biddle and Carr streets, where defendant operates its car line. The evidence tends to prove that by due care defendant’s motorman could have averted the catastrophe, but failed to do so. The petition counts upon the Vigilant Watch Ordinance.
It is argued the court should have directed a verdict for defendant because of plaintiff’s negligence, in that Joseph Albert, the father of the child, permitted it to run upon defendant’s tracks at the time, but we
It is argued that the court erred in declining to sustain defendant’s challenge to juror Byrne, for it is said that his examination revealed a bias against defendant. On the examination of this juror, no admission appears tending to show that he was prejudiced or biased in any wise. It is true he stated that his sympathy for the death of the child would probably influence him in favor of plaintiff, if the evidence were evenly balanced, unless the court instructed otherwise. Touching this matter, the following questions and answers' appear:
“Q. If the evidence in this case in your mind was evenly balanced, and the court had instructed you that it was the duty of the plaintiffs to make out their case by a greater weight of evidence, and in weighing the evidence in your own mind you felt that the evidence*674 was about equal on both sides, would your sympathies influence you in deciding that case for the plaintiffs, in view of the instructions as given you by the court? A. No, sir. Q. Which way would you find if the evidence was about the same, or was the same on the part of the plaintiffs and the defendant, for whom-could you find? A. Well, if I wasn’t instructed otherwise, I would find in favor of the plaintiffs. Q. You would find in favor of the plaintiffs, if the evidence was equal on each side ? A. If I wasn ’t instructed otherwise, I would. Q. This sympathy that you have expressed, would it tend or lead you to give more credence to the evidence offered by the plaintiffs than that offered by the defendant? A. No, sir; it would not. ”
There is, as above stated, no suggestion of bias or prejudice on the part of the juror. At most the question pertains to the sympathies which well from every human heart. It is said by Chief Justice Marshall in Burr’s case: “That light impressions which may fairly be supposed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but that those strong and deep impressions, which will close the mind against the testimony that may be offered in opposition to them, which will combat that testimony and resist its force, do constitute a sufficient objection to him.” This court has given expression to the same views heretofore, as will appear by reference to McManama v. United Rys. Co., 175 Mo. App. 43, 49, 158 S. W. 442; Billmeyer v. St. Louis Transit Co., 108 Mo. App. 6, 82 S. W. 536.
Obviously the sympathies which one entertains for the loss of a child in such circumstances do not constitute a strong and deep- impression which will close the mind against the testimony so as to resist its force and combat its effect. On the contrary, such sympathies are to be regarded as in the category of light impressions which may fairly be supposed to yield to the
Plaintiff’s principal instruction is criticized, but it is well enough, as will appear by reference to numerous cases cited in the brief which support and approve the language employed.
The suit proceeds as for the wrongful death, under section 5125, Revised Statute 1909 — i. e., the penal section. The statute authorizes a recovery for an amount not less than $2,000 and not exceeding $10,000 for every such death as therein cohtemplated. The court gave, at the instance of plaintiff, the following instruction on the measure of damages:
“The court instructs the jury that, if under the evidence and the other instructions given in this case, you decide to find a verdict for the plaintiffs, then you may return a verdict in a sum not less than two thous- and dollars and not to exceed ten thousand dollars.”
It is urged the court erred in this, because the instruction omits to inform the jury plaintiff was not entitled to recover anything for the loss of society nor on account of the loss of services except during the years of minority, but the argument is not convincing, in view of the rule which is now well established concerning a general charge on the measure of damages.
It is argued the verdict is excessive and that this we should declare as a matter of law. The amount of the verdict as approved by the trial court is $7,420. The suit proceeds, as above stated, under section 5425, Revised Statute 1909, which authorizes a recovery of not less than $2,000 nor exceeding $10,000 for every
The judgment should be affirmed. It is so ordered.