127 Ky. 82 | Ky. Ct. App. | 1907
Opinion of the Court by
Reversing.
Appellee, alleging that she was injured in a collision between a freight train operated by appellant Louisville, Henderson & St. Louis Railway Company and one of the cars of appellant Louisville Railway Company, caused by the negligence of the companies, brought this1 action to recover damages from each of them.' A trial was had before a jury, and a verdict rendered against both appellants.
The principal error assigned by appellants is the failure of the trial court to sustain the motion made by them at the beginning of the trial to discharge the panel for misconduct of the jury commissioners in failing to select the jurors in the manner prescribed by the statute, “in that the commissioners did not
- Mr. Eyan was then called upon hy counsel for appellants to testify, whereupon the judge said: “If a clerk of this court interfered with the commissioners, he subjects himself to punishment.” Then the following took place: “Court: You are a deputy clerk of this court, Mr. Eyan? Eyan: Yes, sir. Court: Were you here as a deputy when the jury commissioners were appointed? Eyan: I think I was. Court: Now, the proposition is to have you sworn in this case. You have heard the avowal made hy counsel herein, and the proposition is to have you testify in regard to these matters. I wish to say to you that it
Mr. Dacher was then called by counsel for appellants, who asked that he be sworn; but by permission of the court he declined to be sworn or answer questions, and an avowal was made that if required to
Ky. St. 1903, section 2241, provides in part that “the circuit judge of each county shall at the first regular term of circuit court therein after this act takes effect, and annually thereafter, appoint three intelligent and discreet housekeepers of the county, over twenty-one years of age, residing in different portions of the county, and having no action in court requiring the intervention of a jury, as jury commissioners for one year, who shall be sworn in open court to faithfully discharge their duty. They shall hold their meetings in some room to be designated by the judge, and while engaged in making the list of juries and selecting the names, writing and depositing or drawing them from the drum or wheel case, no person shall be permitted in said room with them. They shall take the last returned assessor’s book of the county and from it carefully select from the intelligent, sober, discreet and impartial citizens, resident housekeepers in different portions of the county, over twenty-one years of age, the following number of names of such persons, to-wit: (then follows the number that shall be selected from each county, graded according to the population.) Each name so selected they shall write in plain handwriting on a small slip of paper, each slip of paper being as near the same size and appearance as practicable; and each slip with the name written thereon shall be by them enclosed in a small case made of paper or other material and deposited unsealed in the revolving drum or wheel case hereinafter provided for.”
In answer to the argument made for appellants, it is said for appellee that the record does not show that
Thus, in Curtis v. Com., 23 Ky. Law Rep. 267, 62 S. W. 886, a motion was made to discharge the entire panel of petit jurors, because the names of the jurors were not drawn from the jury wheel as they should have been, but were selected from a list regularly summoned in a previous month. This being a criminal case, this court had no power to review the action of the trial court in overruling the challenge to the array, but in the course of the opinion said: “These men so selected may have been, and doubtless were, of the very best citizenship in the county; but they were not drawn impartially from the body of legally qualified jurymen of the county. The mode provided by law for the selection of qualified and impartial jurymen was ignored, and the jury were selected by the judge of the circuit court himself. This was clearly erroneous. He may have done this with the very best of motive, but it was not the method provided by law, and should not have been done.” In Covington & Cincinnati Bridge Co. v. Smith, 25 Ky. Law Rep. 2292, 88 S. W. 440, in discussing this jury law, the court said: “The statutes quoted provide ah elaborate system for the selection monthly in courts of continuous session of impartial
If the methods avowed to have been adopted in this ■ case by the commissioners are upheld, all the safeguards thrown around the selection of juries will he virtually abolished, and the effort of the legislative department to improve and elevate the jury system a
The jury commissioners are for the time being officers of the court, and the presumption is that they did their duty; but this presumption, like all
But this privilege did not extend to or protect Eyan or Dacher. They violated no written law, and under the circumstances were not guilty of contempt. As officers of the court they had no duties to perform in connection with the selection of the juries. In assisting the commissioners, if they did so, they were
In addition to the error heretofore mentioned, appellants complain of the instructions of the court, insisting that they were erroneous and prejudicial. This assignment we do not deem it necessary to discuss, as the points made have been determined against appellants by this court in other cases and appeals growing out of the collision in which appellee was injured.
The Louisville City Railway Company further insists that it should have been permitted to assume the burden of proof, and therefore the right to conclude the argument before the jury; and this upon-the ground that, having admitted the collision and that appellee was a passenger in its car at the time, it was necessary that it should explain away the presumption of negligence arising from these admissions. It is true that, when a passenger in custody of a common carrier is injured, the law presumes negligence on its part; but this presumption only goes to ordinary negligence. It will not be presumed that the carrier was guilty of gross negligence. It was' sought in this case to recover for gross negligence, and therefore the burden was upon' the plaintiff to show that the carrier was guilty of that degree of neglect. Southern Ry. in Ky. v. Steele, 28 Ky. Law Rep. 764, 90 S. W. 548; Id., 29 Ky. Law Rep. 690, 94 S. W. 653; Southern Ry. Co. in Ky. v. Lee, 30 Ky. Law Rep. 1360.