Kennon v. Gilmer

4 Mont. 433 | Mont. | 1882

Conger, J.

This is an appeal from the second judicial district, Deer Lodge county, Montana territory. The-action was for injuries received by the plaintiff while a passenger on defendants’ coach, on the 30th of June, 1819, between the towns of Deer Lodge and Helena, and plaintiff recovered a judgment of $17,167 and costs of suit.

From this judgment the defendants bring their appeal to the supreme court and assign as error: First. That the court erred in overruling their demurrer to plaintiff’s amended complaint. Second. That the panel for the jury was not drawn in accordance with the law. Third. Exceptions to instructions. Fourth. Excessive damages; and fifth. That the evidence was insufficient to justify the verdict.

With regard to the fourth and fifth assignments of error, they were ehminated from the cause by the order of this court, made at the August term, when the court by order struck out from the statement the evidence therein contained, and are, therefore, not considered in this opinion.

Referring to the assignments of error in their order, there is, first, the demurrer of defendants to plaintiff’s amended complaint, which was general — that the complaint did not state facts sufficient to constitute a cause of action.

The complaint sets out that the defendants were common carriers of passengers for hire from Deer Lodge to Helena; that on the 80th day of June, 1879, plaintiff took passage on one of defendants’ coaches and prepaid his fare; that while he was in transit the said coach was, by and through and by reason of the negligence and carelessness and mismanagement of said defendants and their servants, and by reason of the failure of defendants to provide suitable, safe and gentle horses, and a suitable and competent driver for the horses, so that the horses to said coach becoming unmanageable, and one of the same jumping and throwing itself on the pole of the coach, thereby breaking the same, thrown and placed in such a condition as to imperil the safety of plaintiff.

So far the complaint sets forth a state of facts upon which the plaintiff could have relied if the injury complained of had happened. But it will be observed that this was not the case. The complaint continues: “And to render it apparently unsafe for plaintiff to longer remain on said coach; that he, being actuated by just fear of bodily injury by longer remaining thereon, jumped from said coach, and, in so doing, one of plaintiff’s legs was fractured, bruised, broken,” etc.

Thus the plaintiff declares that the proximate cause of the injury he sustained was his own action. In so far the complaint shows that the plaintiff contributed to the injury, and avers his reason for so doing — that it was apparently unsafe for him longer to remain on the coach; that he, being actuated by great fear of bodily injury by longer remaining thereon, “jumped from said coach,” etc.

As the plaintiff has heretofore averred that the proximate cause of the injury he sustained was the result of his voluntary act in jumping from the coach, placing it on the ground of apparent danger, and actuated by his great fear of bodily danger, is he not also required to first state, and then prove, that in the doing of this he acted with' a reasonable degree of care and prudence?

Without entering into the question whether the plaintiff shall, in the first instance, be required to allege that he did not contribute, by his own negligence, to the injury complained of, we find in this case that the proximate cause of injury was the act of complainant.

The question to be considered is, were the grounds of plaintiff’s action as set forth in the complaint sufficient to warrant the act, viz., “apparent danger and great fear of bodily injury? ” These are the conditions that present themselves to plaintiff’s mind; but is the condition of plaintiff’s mind to be taken as the true rule of action? Is it not rather the mental condition of a reasonable and prudent man in similar circumstances? We think this the true rule, and that plaintiff, having asserted that the proximate cause of his injury was from his own act, he should then be held to prove that in thus acting he did exercise that degree of care and prudence that a reasonable person would have done in like circumstances. This is nowhere stated in the complaint, and we are left to conjecture as to that important factor in the cause.

Generally the proof of the injury furnishes the proof or raises a strong presumption of negligence on the part of the carriers, as in cases where the stage or vehicle in which the passenger is being conveyed is overturned. But not every accident raises such a. presumption; and when, as in the present case, the passenger is injured by his own act of jumping, no presumption of negligence arises from the accident itself.

This view of the law is set forth and referred to in 12 N. Y. 236; 18 N. Y. 248, 540; Shearman & Redfield on Negligence, sec. 43 and cases there cited; 33 Barb. 414; 49 Cal. 253.

The complaint did not state a cause of action, and defendants’ demurrer thereto should have been sustained by the court.

The second ground of error relied on is the order of court overruling the defendants’ challenge to the jury. The statement is as follows: After the jury which tried this cause had been called and examined on their voir dire, but before they were sworn to try the cause, the defendant interposed a challenge to the jury, which challenge was overruled by the court, and the jury thereupon sworn to try the cause. To the order of court overruling said challenge, the defendants, by their counsel, then and there excepted and filed their bill of exceptions, which was allowed by the court, and was as follows, to wit:

“Now come the defendants by their attorneys and make this their challenge to the jury now here impaneled to try this cause, and as grounds of challenge allege: 1st. That said jury was not drawn or summoned in accordance with law. 2d. That said jurors, and the different jurors composing it, have not been drawn, summoned or impaneled in obedience to law. 3d. Sets out that some jurors which were drawn were excused by the court; but this is not insisted on by counsel, and is not considered by the court. 4th. That after the excusing of the jurors named, the judge of this court and sheriff of Deer Lodge county deposited certain names in a box for the purpose of drawing therefrom to complete the panel of the trial jury to serve at the present term of court, and the clerk of this court, on the 24th day of February, 1881, drew therefrom the names of certain persons (names omitted in this opinion), and on said day issued a venire under the seal of the court, being venire No. 2; and the persons named were afterwards, in pursuance of said venire, summoned as trial jurors, and now form a part of the regular panel of trial jurors of the present term of this court. 5th. That the persons so drawn, or summoned, were not drawn or summoned in pursuance of law, and are incompetent to act and serve as trial jurors in this cause.”

It is again alleged that on the 28th day of February, 1881, the judge of the court and sheriff of Deer Lodge county deposited certain other names in a box for the purpose of having the names so deposited, or a part of said names, drawn therefrom to complete the panel of said trial jurors; that the clerk issued a venire for some of them, and they were summoned and formed part of the panel; that on the 9th day of March, 1881, a jury to try this cause was drawn from a box containing the names of the jurors summoned under the venire mentioned; that at the time said box contained the names of only nineteen persons; that the said nineteen persons did not constitute a full and lawful panel of trial jurors for the said district court, said lawful panel requiring twenty-four persons, summoned in conformity to law, to constitute the full panel of trial jurors.

The following order of court was made and entered on the said 24th day of February, 1881: “It appearing to the court that the number of trial jurors in attendance is insufficient for the transaction of the business thereof, and that a sufficient number of names cannot he drawn from the regular jury box containing the names selected according to law by the county commissioners to constitute a venire, without causing a great delay and expense in the service thereof: It is ordered that the regular jury box he set aside, and that twelve names of persons having the qualifications of trial jurors, to he selected by the judge of this court and the sheriff of Deer Lodge county, he placed in a special jury box, and ten names he drawn therefrom by the clerk in open court under the direction of the judge, and that a venire No. 2 issue therefor, returnable at two P. M., instant.”

A similar order was entered on the 28th day of February, 1881, when other names were placed in a special box and drawn to complete the panel of trial jurors for the term.

The right to a trial by jury is an undisputed right, and in order that this right may be preserved to parties interested, it is a self-evident proposition that the law of their procurement must he observed. This form of trial is by the country, and those serving must be selected from the •duly qualified citizens of the county. For this reason the county commissioners shall, at least twenty days prior to the commencement of any term of court, select the names of one hundred persons, lawfully qualified to •serve as jurors, from the assessor’s books, and the names so selected shall be placed in a box, from which they ■shall alternately draw the names of thirty persons, who shall he summoned, etc. See sec. 773 of fifth division, Revised Statutes.

At the commencement of any term, the judge shall ■examine the jurors who appear, and reduce the number to twenty-four, which in law is and is called the panel. The persons selecting the jurors are official, occupying an important and responsible office. They are selected and summoned before the term of court, whereby the parties may have notice of the jurors, of their sufficiency or insufficiency, characters, connections and relations, that so they may be challenged upon just cause. Therefore any party to a suit has the right to have before him, from which to select a jury, a full and lawful panel, and in section 246, Revised Statutes, the manner of filling a •panel, when a vacancy occurs, is laid down. But when by reason of challenge, in the selection of a' jury for the trial of any cause, or by reason of the sudden sickness or absence of any juror for any cause, the regular panel shall be exhausted, the court may direct the sheriff to summon as many persons as may be necessary to complete the jury for the pending trial. But this is not intended to, nor does it, change the law or the right of a suitor to have a full and complete lawful panel from which to first select the jury.

It is true, the law in force at the time the county commissioners selected the trial jurors required them to select but eighteen. This they did; but at the time of the objection taken in this cause, the law was as heretofore stated. •

It was the right of the parties at the commencement of the trial to have a full panel of twenty-four jurors from which to select a trial jury. This not having been done — the court and sheriff having selected names from which to draw a jury, and a lawful panel not being present, — it follows that it was error in the court to overrule appellant’s challenge to the array. The cause is therefore reversed, and remanded for a new trial.

Judgment reversed..