Montgomery v. Wabash, St. Louis & Pacific Railway Co.
90 Mo. 446
Mo.
1886
Check Treatment
Black, J. —

This is a suit for double damages for two cows, killed by the defendant’s cars at a farm crossing, where the road passes through plaintiff’s lands. The court overruled the defendant’s challenge for cause to two jurors. The challenge to each was for substantially the same reason, and the evidence of one only need be given. He made the following statements in answеr to questions asked by the defendant and the court :

Q. “I understand you to say, in answer to question propounded, that if in your judgment the еvidence in this case, of Montgomery v. The Wabash, St. Louis & *449Pacific Railway Company, was equally balanced, you would be ‍​​​‌‌​‌‌​‌​‌‌‌​‌​​‌​‌‌​​​‌​‌‌‌‌​​‌​​​‌​‌‌‌​‌‌‌​‌‍inclined to find against the railroad V’

A. “Yes, sir.”

Q. “ And that you say your answer is common to all railroads; you would be just as willing to find against the Wabash, as against any other road, and if, in your opiniоn, when you had heard the evidence in this case, it was equally balanced, you would find against the defendant % ”

A. “Yes, sir.”

Q. (By the court.) “ Do yоu give it as your opinion that, if in trying this case it appears that the evidence is equally balanced, you would be more inclined to find against the railroad than plaintiff % Are you prejudiced against the railroads % ”

A. “Yes, sir. I think I would find against ‍​​​‌‌​‌‌​‌​‌‌‌​‌​​‌​‌‌​​​‌​‌‌‌‌​​‌​​​‌​‌‌‌​‌‌‌​‌‍the railroad the quickest,”

Further answering questions asked by the court, this jurymаn said: “I have not formed or expressed any opinion as to the rights of the parties in this case. I have never heard of the case. I have no prejudice against the .Wabash, St. Louis and Pacific Railroad Company in particular. I would dеtermine the cause according to the evidence and the instructions of the court. I am not related to the plаintiff. 1 would be governed by the evidence and the instructions given to the jury by the court.”

In Hudson v. Railroad, 53 Mo. 536, the jurors were asked, if the evidence in the сase should be evenly balanced between the plaintiff, an individual, and defendant, a corporation, which way they would incline to find. They answered they would incline to find for plaintiff. They then, in answer to the court, stated that they thought they could try the сase fairly and without prejudice or bias. This court then held there was no error in accepting the jurors, and in so doing remarked: *450“In this case the jurors answered the judge, that they could decide the case without partiality or bias, and to take their answers all together it is only shown that they were not lawyers; in fact it is generally understood, that jurors are not ‍​​​‌‌​‌‌​‌​‌‌‌​‌​​‌​‌‌​​​‌​‌‌‌‌​​‌​​​‌​‌‌‌​‌‌‌​‌‍informed in referеnce to where the preponderance of evidence is required, and, therefore, it is usual for attorneys in a cause to ask the court to inform the jury by an instruction upon whom the burden rests to prove the different issues.”

In Keegan v. Kavanaugh et al., 62 Mo. 230, the jurors were askеd, if, in the event that the testimony was evenly balanced, they might- not incline to the side of the plaintiff, wife of the man killed. They answеred in the affirmative. The court referred approvingly to the case of Hudson v. Railroad, supra, and among other things said, no such questions were authorized, and that counsel should not be allowed to go into such hypothetical assumptions of how the evidence would turn out on the trial, or how the jurors would act in certain contingencies.

1. In the present case the substance of the statements of the juror is, when taken all in all, that if the evidence should be equally balanced he would find аgainst the defendant. But on further answer to questions propounded by the court he said he had not formed or expressed any opinion as to the rights of the parties ; that he had no prejudice against defendant in particular, and that he would dеtermine the case according to the evidence, and the instructions ‍​​​‌‌​‌‌​‌​‌‌‌​‌​​‌​‌‌​​​‌​‌‌‌‌​​‌​​​‌​‌‌‌​‌‌‌​‌‍of the court. The only thing which shows prejudice is thе statement that he would find against defendant if the evidence was equally balanced. Now, how he should find in that event was a quеstion for the court, and not the juror to determine; and he asserts a determination to be guided by the direction of the cоurt. If jurors are asked questions which involve propositions of law they should be told what the law is. They are not to be condemned *451because they do not know tlie rules of law. It is not always practicable for the court to point out where the burden of proof lies, in advance of the evidence. Thé effort to show that the juror was prejudiced against railroаds in general is rather in the form of the examination than in his answers. We see. nothing to distinguish this case from the cases before cited. Moreover, some ■consideration must be given to the finding of the court. The judge had the jurors before him, and, it appears, took pains to fully inform himself as to whether the juror was really biased. That the trial judge occupies a better position than we do to determine such questions calls for no argument to the experienced mind.

2. The cows either got upоn the track through or over the gate at the crossing, or over the -wire' fence along the line of the road. The court, after defining what would be a lawful fence and gate, told the jury that if the cows got upon the track at a place whеre defendant failed to maintain a lawful fence, or at a necessary farm crossing where the defendant had failеd to erect and maintain a gate four and one-half feet high, with a latch or hook, and were killed by defendant’s cars, thеn the verdict should be for plaintiff. The statute makes the defendant liable for double damages done by its cars, etc., to cattle on the road, or by reason of escaping from, or coming upon, the inclosure, “occasioned in eithеr case by a failure to construct or maintain fences.” The instruction, it will be seen, does not contain the element thаt the cattle were killed or damaged by reason of the failure of defendant to maintain a fence or gate оf the lawful height, or to have the gate hung with a latch or hook. The evidence is conflicting as to the sufficiency of the fence and gate, and there was some evidence tending to show that the gate had been left open by some onе, and for this reason the cattle got on the track and were killed. The instruction should contain the further element before noted so as to. submit to *452the jury the cause of the damage; and as this was not done, ‍​​​‌‌​‌‌​‌​‌‌‌​‌​​‌​‌‌​​​‌​‌‌‌‌​​‌​​​‌​‌‌‌​‌‌‌​‌‍the judgment is reversed and the cause remanded.

All concur.