45 Cal. 323 | Cal. | 1873
Lead Opinion
In impaneling the jury in this case the Clerk drew from the jury box the names of twelve persons as jurors, all of whom appeared and were examined as to their competency. Three of them were challenged for cause, and the challenges were allowed. The Court then required the parties, if they desired to challenge peremptorily one or more of the remaining nine jurors, to do it at that stage of the proceeding, and before the panel was filled by calling three additional jurors for examination in place of those who had been challenged for cause. The counsel for the defendant objected to this course of proceeding, and insisted that he was not bound to exercise his right of peremptory challenge as to any until there were in the box twelve persons whom the Court had adjudged to be competent jurors. But the Court overruled the objection, and compelled the defendant to exercise his
The ruling of the Court in compelling the defendant to exercise the right of peremptory challenge, when there were only nine jurors in the box, is assigned as error on this appeal. Section one hundred and fifty-nine of the Civil Practice Act prescribes the method of impaneling a jury in a civil action, and provides that when the action is called for trial the Clerk shall prepare separate ballots, containing the names of the jurors summoned, who have appeared and not been excused, and .deposit them in a box. “He shall then draw from the box twelve names, and the persons whose names are drawn shall constitute the jury. If the ballots become exhausted before the jury is complete, or if from any cause a juror, or jurors, be excused or discharged, the Sheriff' shall summon, under the direction of the Court, from the citizens of the county and not from bystanders, so many qualified persons as may be necessary to complete the jury.” Section one hundred and sixty provides that “as soon as the jury is completed, an oath or affirmation shall be administered to the jurors,” etc. The next three succeeding sections provide for challenges to the jurors, either peremptorily or for cause; but do not specify at what particular stage of the proceeding a peremptory challenge must or may be interposed.
In People v. Scoggins, 37 Cal. 679, we had occasion to construe sections one hundred and fifty-nine and one hundred and sixty of the Civil Practice Act; and we say, “in a civil action each party has the right to examine the whole twelve,
The judgment must be reversed for this error, but there are several questions presented on the appeal, which, though not necessary to be now decided, will doubtless arise on another trial, and had, therefore, better be disposed of.
The most important of these arises on several instructions to the jury, which were asked on behalf of the defendant, and refused by the Court. The proposition embodied in these instructions, is, substantially, that inasmuch as Charles J. Martin, deceased, when he was killed by the collision on the railroad, left a widow, who subsequently died, during the pendency of this action, the jury must take thát fact into consideration; and in estimating the damages will award only half as much for the benefit of the surviving children of the deceased father as they would have awarded for the' benefit of the widow and children jointly, in case the widow still were living. The theory of the defense on this point is, that under the statute, the recovery is for the joint benefit of the widow and children, if there be a widow; and that if she die before the judgment is recovered, her share of the damages lapses, and is extinguished, and should be deducted from the gross amount which would otherwise be awarded by the jury. The third section of the Act of April 26th, 1862 (Stats. 1862, p. 448), provides that an action of this character shall be brought in the name of the personal representative of the deceased; “ and the amount recovered in every such action shall be for the exclusive benefit of the
But in either event, it does not concern the defendant whether there be a surviving widow to participate in the distribution of the fund. If there be no surviving widow the result will be, not that the amount of the recovery will or ought for that reason to be diminished, but only that it will be distributed wholly to the next of kin. The instructions on this point were therefore properly refused.
Another point made by the defense is, that the collision, by means of which Martin lost his life, was caused by the carelessness or iucompetency of Kane, the switchman, and that he and Martin were both in the.employment of the San Francisco and Alameda Bailroad Company, and not of this defendant. It is, therefore, claimed that the defendant is
not liable for Kane’s acts. But the evidence tends to show that Kane was furnished by the defendant with a joint timetable of the two roads, and was intrusted with the business of attending the switch at the junction, and was relied upon for information as to whether the Alameda train had passed. It is immaterial by which company he was paid, if he was intrusted by the defendant with these responsible duties.
I do not propose to examine particularly the charge of the Court to the jury; but some portions of it, I think, were not sufficiently guarded, and particularly that portion in which the jury is told that if the switchman could not read when the time-table was placed in his hands by the defendant, this of itself was an act of negligence, which made the defendant liable, if the switchman’s ignorance or incapacity in that respect contributed to the death of the deceased. Undoubtedly it would have been gross negligence to knowingly place at an important post like this a switchman who could not read the time-table, and the negligence would have been equally great if the defendant took no reasonable precaution to ascertain whether Kane was a competent man for the position. On the other hand, it may be that all
Judgment reversed and cause remanded for a new trial.
Rehearing
[The foregoing opinion was delivered at the October Term, 1872. A rehearing was granted, and the following opinion, modifying the first, was delivered at the January Term, 1873. ]
We adhere to the views expressed in the opinion heretofore delivered in this cause, in respect to the mode in which the parties are entitled to exercise the right of peremptory challenge, in impaneling juries in civil actions, and we do not regard the denial of the right by the Court below as a harmless error, of which the defendants should not be heard to complain in this Court. But the argument on the rehearing has convinced us that the views expressed in the former opinion in respect to the second point therein discussed ought to be somewhat modified. It was intended by the statute to compel a person through whose negligence another was killed, to provide a fair and just compensation to the surviving widow arid children, if there were any, and if not, then to the next of kin, for the injury they suffered from the death of the deceased. If there were a large number of minor children who were entitled to be. maintained and educated by their deceased father, the recovery should be larger than if there was but one child. Children have a right to demand from the father a comfortable support and a reason
Another point urged by the defendant is, that the Court
The opinion heretofore delivered will stand as the opinion of the Court, except as herein modified.
Judgment reversed, and cause remanded for a new trial.