175 Mo. App. 43 | Mo. Ct. App. | 1913
This is an action fo.r personal injuries sustained by plaintiff while attempting to alight from a car of the defendant, street railway company. The trial, before the court and a jury, resulted in a verdict for-plaintiff in the sum of $2500. Judgment was entered accordingly, and the defendant appealed. For a determination of the questions before us it is unnecessary to set out the pleadings, or review the evidence.
I. Appellant makes four assignments of error. The first of these pertains to the action of the court in loverruling the defendant’s challenge for cause of a juror, one Frederick Kitzing, upon the ground that the
In regard to this assignment of error it will be well to set out what took place upon the examination of this juror during the impaneling of the jury. The juror stated that two' of his daughters had been injured in a street car accident; and thereupon he was examined as follows:
“Q. What member of your family was injured? A. I had two daughters. Q. Hid they settle the matter? A. The company sent a man up there and settled it, and satisfied the girls. Q. But it was not satisfactory to you? A. I had nothing to do with it; I had to pay the doctor bill which they refused toi pay. One was laid up six months after it. Q. That fact created a feeling of dislike towards the company? A. It should not. Q. But it did? A. Yes, a little. Q. You still have that feeling that the company didn’t do just right in not paying that doctor bill? A. I have that feeling.
“Mr. Priest: I challenge the juror for cause.
“By the Court: Ho you feel that that disappointment that you had over the nonpayment of that doctor ’s bill would necessarily have any influence in your deciding a case in which the same company was a party? A. It would not. Q. Could you try this ease, acquit yourself of any feeling, and try it fairly on the evidence as you heard it here and under the instructions of the court? A. I always try to do justice to everybody. Q. Of course, this question must be addressed to your own conscience; we can’t tell how your mind may work on that subject. It must be left to you to say whether, under your oath, you could say that you would try this case just as fairly as if the incident had not happened in your family, or whether it would have some influence with you in weighing the evidence and deciding the case. A. I think I could do justice*48 right. Q. Yon don’t think it would have any influence with you in deciding this case? A. I don’t think it would. Q. You could take this case up and decide it on its own facts, no matter what they in some other case might have done? A. Yes, sir.
‘ ‘ The Court: _ The challenge is not well taken. ’ ’
To this action of the court the appellant duly preserved its exceptions, and insists that the same was reversible error. In support of its contention in this regard we are cited to Carroll v. United Rys. Co., 157 Mo. App. 247, 137 S. W. 303 ; Heidbrink v. United Rys. Co,. 133 Mo. App. 40, 113 S. W. 223 ; Theobald v. Transit Co., 191 Mo. 395, 90 S. W. 354. In the Carroll case the juror on his examination, in answer to a question as to whether he entertained any feeling of ill will against defendant, said: “I would be against them, because I have had some experience.” In answer to a further question he said that he had a feeling of ill will against the defendant. He was told by the court to stand aside, but, upon finding that there was no juror to take his place upon the panel, he was recalled1 and further examined by the court, and, upon his statement that his feeling of ill will against defendant had been removed, the court overruled the challenge. In the Heidbrink case the juror’s mother had been injured by one of defendant’s cars some time previous to the trial, and the juror stated that the claim against the company had been “not exactly settled satisfactorily.” In the course of further examination he stated more than once that, if the evidence were equally balanced, he would’ give the plaintiff “the benefit of the doubt.” In the Theobald ease one of the jurors challenged had himself been injured by a street car some years before the trial. He stated that that fact would influence him in the trial of the case. Among other things he said: “I have a prejudice against railroad companies — against street car companies. In the same case the other challenged juror said: “I have a sort of prejudice against.
In the administration of justice it is vital that those who sit in judgment, whether jurors or judges, be' free from any prejudice or bias that would in any manner influence them in a decision either upon the facts or the law. Or, as stated by Marshall, J., in Theobald v. Transit Co., supra, “The streams of justice should be kept pure and free from prejudice.” However, under conditions existing to-day, we might frequently find some practical difficulties in the way of applying Lord Mansfield’s ideal rule that a “juror should be as white as paper.” The test stated by Chief Justice Marshall in Burr’s case, and which is quoted approvingly in Theobald v. Transit Co., supra, is: “That light impressions which may fairly be supposed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but that those strong and deep impressions, which will close the mind against the testimony that may be offered in the opposition to them, which will combat that testimony and resist its force, do constitute a sufficient objection to him.” [See, also, Billmeyer v. Transit Co., 108 Mo. App. 6, 82 S. W. 536.]
In the case before us can it be said that the examination of this juror showed the existence of any strong and deep impressions which would close his mind against the testimony, or of a bias or prejudice which would influence his judfgment? It appears that
We are of the opinion that the answers given by this juror on his examination did not indicate a prejudice against the defendant, or any feeling toward it which would influence his judgment in the case. It will be observed that there is much difference in this respect between this case and those above upon which defendant relies. In each of the latter cases the statements of the juror clearly indicated the existence of a prejudice against the defendant company such as would doubtless have influenced the juror’s judgment, and hence rendered him incompetent. And such likewise was the case with the juror in question in Billmeyer v. Transit Co., supra, in which the subject here under discussion was ably treated in a clear and well-considered opinion by Goode, J. In the case before us such prejudice does not appear, unless it can be said to be shown by the “feeling” that the juror had about the company’s refusal to pay the doctor’s bill. It would seem that his ought not to disqualify him as a juror, where it does not appear to be a deep-seated feeling or impression, sufficient to influence him in passing judgment upon the facts under the evidence in the case. So thought the trial judge, who had the juror before him, and whose finding ought hot to be disturbed unless it appears to be clearly against the evidence. We think that no reversible error was committed in overruling the challenge to this juror.
II. Appellant’s second and third assignments of error pertain to the action of the trial court in over
Defendant duly preserved its exceptions to the overruling of the motions by term bills of exceptions; but the filing of its answer, tendering issue on the facts, took the life out of its exceptions on appeal.
III. The fourth assignment: of error pertains to the giving of an instruction for plaintiff on the measure of damages. The point to this assignment is that the instruction in question authorized the jury, in estimating plaintiff’s damages, to take into consideration the character and extent of his- injuries, if any, “and whether they are permanent in their nature;” whereas, appellant insists that there was no evidence to authorize the submission to. the jury of the question of permanent injuries.
The only serious injury immediately suffered by plaintiff from his fall to the street was an injury to his light knee. The only expert testimony bearing upon the question of the permanency of this injury was the following answer of a physician, a witness for plaintiff, viz.: “I examined this knee a year ago, and found two days ago practically the same condition that I found a year ago; and as there seems to have been no
Plaintiff at the time of the trial was forty-four years of age. The evidence tends to show that prior to the accident he was a good specimen of physical manhood, of good weight, strong, and in good health. As a result of the injury to his right knee he was compelled to go on crutches for about six months. A physician who treated him testified! that after the injury the kneejoint was swollen and filled with fluid, and remained1 so for two or three months, and that for eight or nine months plaintiff had to wear a bandage on account of the weakness- there, which weakness remained up to the trial; that the knee. was preternaturally movable and loose, due to the weakness and relaxing of the ligaments about the joint, as a result of the injury. There was evidence to the effect that subsequent to the accident plaintiff suffered from nervousness, insomnia, • and in fact a general nervous breakdown, and1 that-his general health had become much impaired. And the testimony of one of his physicians, an expert upon nervous diseases, was to the effect that, in the opinion of the witness, plaintiff’s nervous condition and the impairment of his health consequent thereupon resulted from the injury to his knee.
“While the jury should not be instructed to allow for permanent injuries, taking that word in its strict sense, in the absence of any evidence to support such an instruction, it seems to us that the giving of this instruction was -at any rate not prejudicial error such as to warrant a reversal of the judgment. It would seem that under all the evidence in the case respecting plaintiff’s condition before and after the injury there was enough from which the jury might find that plaintiff ’s injuries, to some extent at least, were reasonably certain to be permanent.
Furthermore, conceding the wording of the instruction to be erroneous, under the evidence, a careful
There being in our opinion no .reversible error in the record, the judgment of the circuit court should be affirmed!. It is so ordered.