155 Mo. App. 428 | Mo. Ct. App. | 1911
(after stating the facts). — I, Defendant assigns as error the action of thé trial court in overruling defendant’s challenge of three jurors on the ground that each of them had served on a jury within 12 months next preceding the d’ate of trial. The evidence showed that each of them had been summoned for jury service for one week beginning with Monday of the week in which this case was tried and that they had sat upon juries during that week but that they had not served upon any jury -within a whole year prior to Monday of that week. The question involved in this assignment of error received the consideration of the Springfield Court of Appeals in the recent case of Blyston-Spencer v. United Railways Company of St. Louis, 132 S. W. 1175, 1177. On a review of the authorities and statutes that court held that the language of section 6547, Revised Statutes 1899, which is now section 7342, Revised Statutes 1909, “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 provisions of this article, or who served on any jury in any court of this state within twelve months next preceding, if challenged for that cause, by either party
II. Defendant assigns as error the action of the trial court in refusing to direct the jury to find a verdict for it. It is difficult to imagine a case where such a direction would have been more uncalled for than in this. While the petition purports to declare on the “Vigilant Watch Ordinance” and also upon the “humanitarian or last chance doctrine,” as if they were separate and distinct in their nature, the two were, in effect, the same, The oi?dinance “is simply declaratory of the municipality’s approval of what is commonly called the ‘humanitarian or last chance doctrine.’ ” [Gebhardt v. St. Louis Transit Co., 97 Mo. App. 373, 380, 71 S. W. 448; Mertens v. Transit Co., 122 Mo. App. 304, 312, 99 S. W. 512.] The parties recognize this and agree that the only assignment of negligence' proper to be considered by the jury were, failure of the motorman to keep- a vigilant watch, and failure to stop the car within the shortest time and space possible, etc. Defendant contends that neither of them was sustained by the proof. Its theory is that the most vigilant watch on the part of the motorman would not háve prevented the accident because it was too dark to see more than a few feet and the deceased darted out upon the track so suddenly and so immediately in front of the approaching car that to strike him was unavoidable. There was some evidence tending to prove that the dusk of the evening made objects indistinguishable unless very near, but there was also ample evidence to the contrary. It was testified in behalf of the plaintiffs and entirely uncontradicted that the view of the motorman as he approached the
It may then be said that the jury was justified in finding from the evidence that the motorman traveled about 140 feet, and until it was too late, without attempting to stop, and all the time he saw, or by the exercise of ordinary care could have seen, this child running into a situation of great peril, and he in charge of a car which could have been stopped within twentvrfive feet.
III. The defendant asserts that the court erred in giving instruction No. 1 in behalf of plaintiffs. The defendant complains first, that the instruction “assumes defendant’s motorman failed to keep a vigilant watch.” After requiring the jury to find that the car “was allowed to strike and cause the death of said James Kaiser,” etc. the instruction requires them to “find from the evidence that said car was so allowed to strike and cause the death of said James Kaiser, in consequence of the failure of the motorman of defendant operating same immediately prior to such casualty to beep vigilant watch,” etc. This last quoted part of the instruction
We have given due consideration to all the questions raised by counsel for defendant, but find no reversible error in the case. The judgment is affirmed.