156 Mo. App. 52 | Mo. Ct. App. | 1911
This is a suit for damages accrued to plaintiff on account of an alleged wrongful ejection from a passenger train. Plaintiff recovered a verdict of $5.71 but the court subsequently set it aside.on his motion and defendants prosecute the appeal from that order. The case proceeds against defendants St. Louis & San Francisco Railroad Company and the Chicago, Burlington & Quincy Railroad Company jointly on the theory that the obligation of each was breached by the ejection of plaintiff, who, at the time, was a passenger on the St. Louis & San Francisco Railroad in Kansas.
■ It appears plaintiff purchased a ticket at Wells-ville, in Montgomery county, Missouri, from the Chicago, Burlington & Quincy Railroad Company for transportation over the two roads to Brownsville, Texas, and return. The Chicago, Burlington & Quincy agent at Wellsville issued to plaintiff transportation over its road to Kansas City and an exchange slip entitling him to a ticket over the St. Louis & San Francisco Railroad from Kansas City to Brownsville, Texas, and return. Plaintiff paid the price of the through transportation to the Burlington agent at Wellsville and upon arriving at Kansas City presented the exchange slip to the agent of the St. Louis & San Francisco Railroad Company, who, in return, gave him therefor a round trip excursion ticket at reduced rates, good on the short line
It appears from both the testimony of plaintiff and the conductor that the ejection from the train was conducted with propriety. While plaintiff declined to accede to the mere request of the conductor and insisted upon being ejected, he says the conductor was polite and courteous and neither insulted nor abused him when enforcing his command. Furthermore, it appears no force was employed and withal the conductor performed the task in a quiet and gentlemanly manner. Plaintiff took the next train for Blackwell and was required to pay out $5.71 railroad fare in order to finally reach Blackwell and. return to a point on defendants’ lines where his ticket was good.
A verdict for plaintiff was returned to the amount of $5.71 only and this verdict the court subsequently set aside on his motion for irregularities pertaining to challenging and impaneling the jury. The-facts pertaining to this matter are as follows : Eighteen jurors were assembled by the court, as is usual in such cases, and •qualified on their voir dire as competent for the purposes of the case. A list containing the names of the eighteen jurors was furnished to plaintiff’s counsel for the purpose of peremptory challenge. He retired and examined the same but declined to make any challenges therefrom whatever. Plaintiff’s counsel returned the list and in open court announced that he was satisfied with it as it'stood; that all of the first fifteen names on the list were satisfactory and that no. challenge would be made by him. The jury list was thereupon given into the possession of defendants’ counsel who retired to consider of their challenges. It may be said here that the statute, section 7281, Revised Statutes 1909, entitles either party in cases such as this one to three peremptory challenges but several plaintiffs or defendants are required to join in such challenges. While defendants’ counsel were engaged in exercising their right
There is evidence that though plaintiff and his counsel were present when the jury was impaneled and sworn and during the trial throughout, they were without knowledge as to the fact that defendants’ counsel had rearranged the jury list so as to really exercise six challenges instead of three until after the verdict was rendered. It is said that their omission to object and call the matter to the attention of the court at the time, was because of their ignorance touching the same. Conceding these facts to be true, plaintiff is nevertheless-, precluded as to such an open and obvious matter by his.', lack of diligence. It appears that, only a few moments; before, he and his counsel carefully studied the jury lisfr sufficiently to determine that any one of the first fifteens named thereon was satisfactory to them. When a jury/ was called therefrom shortly after, it was obvious to» anyone exercising reasonable diligence in the-premises.? that six of the names among the first fifteen- were not-called, not sworn and did not take their.-places.in.the:
In view of the fact there is no suggestion that any of the jurors was either biased or prejudiced against plaintiff or that the verdict was unfair, it is entirely clear that the matter of defendants’ removing six names instead of three from among the first fifteen on the list should be treated as waived by plaintiff’s omission to exercise diligence at the time of impaneling the jury or during the trial, for in the eye of the law he knew there was some change in the arrangement of the jurors’ names as it was open and obvious to any one who had examined the list only a few months before.