152 Mo. App. 118 | Mo. Ct. App. | 1910
I. Appellant at the outset assigns as error the action of the trial court in overruling appellant’s .challenges of jurors Marshall, Metzner, Orr, Penseneau and Hennessy, on the ground that each, of said jurors had served on a jury within twelve
Section 7353, Revised Statutes 1909', concerning juries in cities of 100,000 inhabitants or more in this state, provides that each of the courts therein referred to “may direct from time to time the number of jurors, to be summoned for said court, and how long they shall be summoned before their appearance shall be required, and how long they shall serve. ’ ’ The panel of jurors which tried the present 'case had been required by the court, under the authority granted by this section, to appear on the preceding Monday and serve for a period of one week. Section 7361, Revised Statutes 1909, provides that a juror is to serve only once a year, and that no'person should be required to serve as a juror, either grand, petit or special, more than once a year. But it has been held that this section confers a special privilege on the juror, and does not forbid his being summoned. It is ground for challenge for cause, but is waived if the juror is not challenged peremptorily. [Williamson v. St. Louis T. Co., 202 Mo. 345, 100 S. W. 1072.] Section 7342, Revised Statutes 1909 (in the same chapter), provides what persons shall be exempt from jury service^ in such cities, and contains the following provision: “. And it shall be the duty of every court of record in said city to excuse from service as a juror every person who, being examined on the voir dire, shall appear to the court to be a person whose name ought not to have been placed upon the jury list under the pro
It will he seen that section 7353, which authorizes the court in which the jury is to serve to determine how long the jurors shall he in attendance or how long they shall serve, is apparently in conflict with section 7342 which provides that it shall be the duty of every court of record in said city to excuse from service as a juror any person who has served on any jury in any court in this state within twelve months next preceding. The respondent contends that the service referred to in section 7342 as “next preceding” means that where a juror is summoned on a regular panel within twelve months prior to the date on which his service on said regular panel is to commence, he may be challenged for cause. The appellant contends that the service referred to as “next preceding” means within twelve months prior to the date on which the juror is actually called into the jury box to serve as a juror. The law of interpretation of statutes is well established that all provisions of law relating to one subject should be considered in determining the meaning of any particular portion thereof, and such a construction should he given to the portion under consideration as will keep all the provisions of law on the same subject in harmony, and give effect to all, when such construction is possible. [Macke v. Byrd, 131 Mo. 682, 33 S. W. 448; City of Westport ex rel. v. Jackson, 69 Mo. App. 148; Litson v. Smith, 68 Mo. App. 397.] Where the provisions of law are seemingly contradictory of each other, or the literal construction of a single section would conflict with any other following or preceding it and with the entire scope of manifest intent of the act, it is the duty of courts, if it he possible, to harmonize the various provisions with each other, and to effect this,'
Applying these general principles to the sections of the statutes under consideration — which are in pari materia• — in ■ order to collect the legislative intent, we think there can be no reasonable doubt as to their proper construction, and that the appellant’s contention should not be sustained. The evident meaning of the several enactments, considered together, is that in case a juror is called upon the regular panel to perform jury service for a specified length of time (in this case, one week), the law would only exempt him from such service provided he had served as a juror within twelve months prior to the time when he begem service as a juror on such regular panel. Otherwise, the sections of the law, when all considered together, are conflicting and irreconcilable. The manifest purpose of the enactments was not to burden the juror with unnecessary service, but to distribute such burdens generally among all citizens qualified for jury service.
II. The court, at plaintiff’s request and over defendant’s objection, gave the following instruction as to the negligence of the defendant in running its car at a rate of speed in excess of fifteen miles an hour:
“2. . . . and if the jury believe and find from the evidence that the place at which plaintiff was injured was in that portion of the city described as not being the central district in the city ordinance read in evidence; that just before and at the time said car ran against said plaintiff and injured her, the said car was running at a rate of speed in excess of fifteen miles an hour; and if the jury further find from the evidence that such excessive rate of speed of said car directly caused tbe injuries to the plaintiff; and if the jury further find and believe from the evidence that before going upon said track and whilst passing over,*129 upon and near said track, the plaintiff used ordinary-care in looking and listening for the approaching car and to avoid injury to herself, then the plaintiff is entitled to recover and your verdict should be for the plaintiff. ’ ’
Of its own motion the court gave the following instruction :
“The jury are instructed that it was the duty of the plaintiff before crossing the defendant’s electric railway track, to exercise ordinary care to look and listen for approaching cars and to exercise ordinary care to avoid coming into collision with such cars, and if you find from the evidence in this case that plaintiff failed to so look and listen before stepping on the defendant’s track, and that by so doing she might have observed the approaching car, and by the: exercise of ordinary care avoided the collision, then your verdict must be for the defendant even though you believe defendant was guilty of negligence, unless you further find that the motorman could have stopped the car in time to have avoided the collision by the use of the means at his command and consistent with safety to the car and to the passengers in the car, after discovering the danger to plaintiff, or could have discovered such danger by keeping a vigilant watch.”
Appellant assigns as error that these two instructions rest upon inconsistent theories. It will be seen that instruction No. 2 submits to the jury the question of the defendant’s negligence occasioned by the speed ordinance of the city, while the latter instruction, which the court gave of its own motion, was to the effect that the contributory negligence of the person injured would not prevent a recovery when such negligence was known to the party causing the injury and the injury could have been avoided by the use of reasonable care. Appellant’s contention is that the instructions are inconsistent in that instructions on peg
In the late case of Shipley v. Metropolitan St. Ry. Co., 144 Mo. App. 7, 26, 128 S. W. 768, 774, the Kansas City Court of Appeals said: “The most serious objection offered to this instruction is that it submits the hypothesis first, that the peril of the decedent was created by the sole negligence of defendant without the aid of contributory negligence, and, second, that the death was caused by the negligence of the defendant under the humanitarian doctrine. The argument is that these hypotheses are so inconsistent they cannot be considered in the same case and the cases
We are disposed to accept the opinion in the case of Spencer v. Transit Co., 222 Mo. 310, 121 S. W. 108, as declaring the law as it should be applied to the present case. In the case of Hough v. St. Louis Car Co., 123 S. W. 83, decided by the St. Louis Court of Appeals, the decision in the Spencer case, though subsequent to the Krehmeyer case, seems to have escaped the attention of that court.
The duty of motormen and others in charge of street cars, under this legislation as to vigilant watch, is written so large and so clearly that no judicial .construction is required to interpret its beneficent provisions. Its purpose was manifestly to require the keeping of a vigilant watch by the motorman for all persons on foot, whether on the track or moving toward it, and, on the first appearance of danger to such persons, required that the ear should be stopped in the shortest time and space possible. In large cities', especially, where considerable bodies of people comprising all classes, young and old, stalwart and feeble, are continually passing over and along the streets on which street cars are operated, it is to be anticipated that there will be people among such a throng more or less unconscious of their situation, and perhaps in
It is further contended by appellant that the instruction (No. 2) in regard to the speed of the ear was erroneous for the reason that the speed of the car was not shown to have been either the proximate or remote cause of the collision. It is- to be noted that
The two principal actors upon the scene at the time of the accident were the plaintiff and the motorman on the Taylor avenue car, both of whom were thoroughly familiar with the place where the accident .occurred. The plaintiff’s residence was on the south side of Delmar avenue, a short distance from the intersection of Delmar and Bayard avenues; she*had resided there three years and hence was familiar with the surroundings and the operation of the street cars in that vicinity. The motorman in charge of the Taylor avenue car which was driven against plaintiff’s person was a man of wide experience as a motorman, having run cars over Delmar and Euclid avenues for about seven years. The plaintiff, according to her own statement of her case, at the time she left the curb on the south side of Delmar avenue to pass across Delmar, going north, looked west, in the direction- of Euclid avenue, for the purpose of seeing whether a car was approaching from that direction on Delmar; that she could see three blocks to the west and that at that time there was no such car in sight. She stated that she then passed about eighteen feet north, to a point between the double tracks on Delmar, and stood in the space between the two sets of tracks; that as she entered such space, she again looked west to ascertain whether a car was approaching from that direction, but that no ear from the west was then in sight; that she remained standing at that place, just outside the north rail of the south track on Delmar, looking
It is contended, however, that the plaintiff by her own negligence in going upon the south track in front of the approaching car was the cause of her own injuries. The reply to this is that the motorman on the Taylor avenue car, during the time it was passing over the space of some four hundred feet, if he had kept vigilant watch, should have known the peril she was in. If one, by the negligence of another, has been placed in a situation of apparent imminent danger, he is not required, in attempting to escape therefrom, to use the judgment and discretion that is required of him when not denominated by terror or impending danger. And if, without having time to deliberate, and acting on the instinct of self-preservation, as a prudent person might be expected to act in the circumstances, he is injured by adopting the dangerous alternative, he may still recover from the one by whose negligence he has be.en impelled to act, although no injury would have resulted had no attempt to escape been made. [Kleiber v. People’s Ry. Co., 107 Mo. 240, 17 S. W. 946; Bischoff v. People’s Ry. Co., 121 Mo. 216, 25 S. W. 908.] In this case, an injury would have been likely to have resulted if plaintiff had continued in the space between the two sets of tracks, .and after she discovered her danger from the Taylor avenue car, she. did all that could have been done to escape injury.
III. Appellant further contends that plaintiff’s instruction on the measure of damages was erroneous. The petition seeks a recovery for damages for nurse hire, hospital bill, ambulance hire, doctors’ bills, medicine, and other items incurred by reason of her inju?
It will be noticed that this instruction does not limit the amount of recovery for these items to the amount claimed in the petition. This was reversible error which could not be cured by a remittitur. [Smoot v. Kansas City, 194 Mo. 513, 522, 92 S. W. 363; Heinz v. United Rys. Co., 143 Mo. App. 38, 122 S. W. 346.] In the latter ease, the action was for damages for personal injuries, and the petition alleged, among other items of damage, that plaintiff lost two weeks’ time and his earnings of $2.50 during that period; that his injuries were treated by a physician and on account of the services of the latter to plaintiff he became indebted to the physician for the reasonable value of the treatment, to-wit, fifty dollars. The evidence, tended to support the items of charge in the petition. The-instruction on the measure of. damages told the jury to assess damages for any loss of earnings they might believe had been occasioned by the injuries, and the reasonable expense, if any, he had incurred, for medical treatment. An exception was taken to the instruction (as in this case) based on a failure to limit recovery for loss of earnings and for medical services
IY. It is further contended that the trial court erred in refusing defendant’s seventh instruction. This instruction was to the effect that if the jury found that the plaintiff in crossing the track failed to look and listen for the approach of the cars, and if the cars were approaching in dangerous proximity, it was her duty to stop before going into peril and permit the cars to pass, and if the jury believed from the evidence that she passed onto the track of the defendant in dangerous proximity to the approaching east-bound car without looking or listening for the approach of said car, that she was not entitled to recover if they further believed ■ that her failure to look and listen directly caused or contributed to cause in part or in whole her injuries.
It will be seen that this instruction based the negligence of the plaintiff upon her failure to see the eastbound car. We think the instruction' was obviously defective because it denied recovery upon, the sole ground that plaintiff failed to perceive the approach of the east-bound ear, first, because the court in the instruction given of its own motion stated this same proposition in language that covered the refused instruction, and second, if the defendant’s servants were guilty of negligence in placing the plaintiff in a dangerous situation in which she was required to act
V. Another contention made by appellant is that the trial court erred in allowing plaintiff’s counsel to charge the defendant with “infamy,” and, upon request, refusing to rebuke or reprimand plaintiff’s counsel therefor. In this case, the defendant’s counsel himself was not entirely without blame as he first led the way outside the record in an attempted defense of the character of his client before it had been attacked, and thus opened the way and threw down the bars for counsel oh the opposing side to make an attack, and in the fervency and zeal which characterize advocacy no doubt the plaintiff’s counsel went beyond due bounds and should have received at the hands of the court a proper reprimand. "When the conduct and remarks of an attorney are reprehensible, the trial court should reprimand the offender and admonish him to desist, and if this does not prove sufficient, should punish him for contempt of court. As appellate courts have often said, one of the first duties of a judge of a trial court and an important duty is to preserve order in the court and require that the attorneys as well as other persons present should by their behavior show a decent respect for the court, for the opposing counsel and for the parties .litigant, as well as witnesses who testify in the case. We quote with approval in this connection the language of Judge Gantt, speaking for the Supreme Court in the case of Haynes v. Town of Trenton, 108 Mo. l. c. 133, 18 S. W. 1003. He said: “The disposition of this court is to permit the greatest latitude in the argument of a cause to the juiy. But its disposition to trust largely to the discretion of the trial courts must not be construed that we will, on that account, tolerate the clear disregard of a litigant’s right to have his cause heard and tried
As this ease is to be retried, we call attention to the instruction given for the plaintiff on the court’s' own motion in the latter clause of which there seems to be an- omission, perhaps a typographical error, and if given on another trial, it should be corrected so that the latter part will read, — “after discovering the danger to plaintiff, or if he could have discovered such danger by keeping a vigilant watch.”
Also, in plaintiff’s petition, in the last part of the statement of the first count, these words appear,— “negligenly and carelessly failed to do so thereby directly contributing to plaintiff’s injuries.” Also, in the other count, “thereby causing and directly contributing to plaintiff’s injuries as hereinbefore alleged.” It might be better to' omit or change these clauses of the petition. [Hof v. St. Louis T. Co., 213 Mo. 445, 111 S. W. 1145.]
Also, the plaintiff’s instruction on the measure of damages authorizes damages for “impairment of the plaintiff’s health,” when no such charge is directly
For the reasons stated, the judgment is reversed and the cause remanded.