108 Mo. 191 | Mo. | 1891
This is an action for personal injury, the loss of a leg, by the plaintiff, who was acting as a roustabout in the employ of defendant. At the time of the accident, he was riding on the pilot of an engine, that was placing some cars on a fuel track. The negligence complained of was the defective condition of this track. It was charged to have been so uneven, that plaintiff, without his fault, was thrown from the pilot and his leg crushed by the engine passing over it. The answer was a general denial and contributory negligence.
On the trial the testimony on the part of plaintiff tended to show that defendant’s fuel track was out of repair, as charged in the petition, and that plaintiff, who was at the time assisting in taking a car from said track, fell from defendant’s engine, which ran over him, necessitating the amputation of his leg.
The testimony on the part of the defendant tended to show that the defendant’s said track was in reasonably good condition, and that plaintiff was flirting with some women, and not giving attention to his business, and, hence, the accident.
On the trial the plaintiff was permitted, against the objection of the defendant, to show his condition in life; that he was a married man, the number of his children, etc. He was also permitted, against defendant’s objection, to show that the amputation of his leg was a very dangerous operation; that it frequently proved fatal, etc. He was also permitted, against the defendant’s objections, to show that the track, at the point where he was injured, was subsequently repaired. This was done six or eight months after the accident.
Defendant undertook to impeach the testimony of one Wm. Craig, a witness for plaintiff, by showing that he had made statements different from his testimony.To lay the foundation, defendant’s counsel asked said witness if he had not, a few days prior to the time of the trial, made certain statements to a man named Henry Williams. To this the said witness replied that he did not know Henry Williams, but Harry Williams was the man to whom counsel referred, and that he had not made such statement to him, or anyone else. When said Williams was called .by defendant, the court would not permit him to testify to what Craig had said, on the ground that the foundation had not been properly laid.
One of the panel of jurors, Daniel Archdeacon, on his voir dire, said that the plaintiff was a second or third
Appellant asked forty-nine instructions. It assigned as error the refusal to give thirty-six of these. It has been more considerate of this court, and in its abstract only presents us with nine of those refused, and in its brief only insists that four of these were improperly refused, numbers 4, 6, 15 and 27, and complains only of the second, third, sixth and seventh of those given for plaintiff.
The jury returned a verdict for plaintiff for $5,000. From this defendant appealed to this court.
I. The juror, Archdeacon, on his voir dire, stated the plaintiff was second or third cousin to his wife. He was then asked by counsel for defendant, “Would that relationship influence you in coming to a conclusion?” He answered, “Yes, sir.” He was then challenged for cause. He was then asked by plaintiff’s counsel, “Don’t you believe that under your oath you could try the case impartially ?” He answered, he could if it was his brother. Defendant again inquired, “ Don’t you think that you would be inclined to listen more favorably to his evidence ? A. Well, I might.” The defendant challenged the juror for cause, and the court overruled the challenge and defendant excepted.
The finding of a trial court as to the qualification of a juror ought not to be disturbed unless it is clearly against the evidence. The trial judge has exceptional advantages to see and know the jurors. Often the manner alone and tone of voice may indicate prejudice or bias, or the want of either. It would seem, however, that a court ought to have no difficulty in obtaining jurors of good repute who are in no way related to either party. While we would hesitate long before reversing this case for this action alone, we think it is
II. On the trial over the objection of defendant, the court permitted plaintiff to prove he was a married man, and had one child, a babe. The rule is now settled in this state, that this was reversible error. Stephens v. Railroad, 96 Mo. 207; Dayharsh v. Railroad, 103 Mo. 570.
III. Plaintiff offered, and the court admitted, evidence against the objection of defendant, that some six months after the accident to plaintiff defendant repaired this fuel track, built it up, put in new ties and good rails. The purpose of this evidence is obvious. It has but one meaning. It was calculated to induce the jury to believe the repairs were made by defendant because of a consciousness that its track was defective as charged by plaintiff. In permitting this, the court erred. Hipsley v. Railroad, 88 Mo. 348; Brennan v. St. Louis, 92 Mo. 482; Alcorn v. Railroad, ante, p. 81.
IY. The court erred in refusing to permit defendant to impeach the witness Craig by the witness Williams. Craig’s attention was called to the time and place and to the statements made. The fact that Williams was designated as Henry, when his name was Harry, was of no consequence. Craig understood who was meant, and that was sufficient. Nor can we say the evidence was merely cumulative.
Y. The’ alleged improper remarks of counsel in argument were not objected to at the time, and cannot be reviewed by us. Sidekum v. Railroad. 93 Mo. 407.
YI. We have considered the objections to the instructions given for the plaintiff. We find no error in them. The instruction, numbered 2, while it is unquestionably the law, standing alone, is an abstraction, and would not aid the jury. It might well have been omitted. The court was liberal in instructions for defendant.
defect in the track occasioned by the defective rail or whether the deceased was familiar with this particular track were questions also for the jury, as different conclusions might be drawn from the evidence on these subjects. Conceding, however, that the deceased was perfectly familiar with this track and remained in defendant’s employment, this of itself would not have been sufficient to defeat a recovery. The deceased’s knowledge of the unsafe condition of the track, if it was unsafe, would not defeat a recovery, £if it was not so dangerous as to threaten immediate danger, or if • he might have reasonably supposed that he could safely work about it by the use of care and caution.’ Huhn v. Railroad, 92 Mo. 440.” "
By qualifying instruction, numbered 4, given by the court of its own motion, to conform to the principles laid down in the Soeder and Huhn cases, supra, the rights of both plaintiff and defendant can readily be determined by the jury. The cause is reversed and remanded for a new trial.