Louisville & Nashville R. R. v. Young

SIMPSON, J. This is an action by the appellee against the appellant for damages for the death of her intestate, Joe LaAvrence, claimed to have been caused by his being struck by a moving engine of the defendant. The case has been in this court twice heretofore.—L. & N. R. R. Co. v. Banks, Adm’r, 132 Ala. 471, 31 South 573, and Same v. Young, 153 Ala. 232, 45 South. 238, 16 L. R. A, (N. S.) 301. The plaintiff demanded a struck jury, and in ascertaining the qualifications of the jurors asked if they — 560 — were employees of the defendant, and, three of them answering that they were, the court, on motion of the plaintiff, excused them from service, to which action of .the court the defendant excepted and makes the action •of the court the first assignment of error insisted on. It is laid down as a general proposition that: “The power of the court to reject jurors of its own motion is not confined to the enumerated grounds of challenge, or to cases where a refusal to sustain a challenge would be error; but may be exercised for any cause which the court, in its discretion, deems sufficient to render the juror unfit to serve.”—24 Cyc. 313. This court has said that “the right of the parties to a. jury free from bias or interest is not lost, nor subjected to chance or peril, because one party, in the exercise of a legal right, * * * demands a struck jury.”—Dothard v. Denson, 72 Ala. 541, 543. Also that “the statute prescribing the cases for which a person, drawn and proposed as a juror, may be challenged, was not intended to take away from the court the discretionary power to excuse any person who appears to the court to be unfit to serve on the jury,” though this power “should be exercised consistently with the right of the accused to have a jury selected from the list served on him, as far as practicable. There must be a cause.”—Long v. State, 86 Ala. 36, 40, 5 South. 443; Scott v. State, 133 Ala. 112, 115, 32 South. 623; Williams v. State, 144 Ala. 14, 17, 40 South. 405. The Long Case and the Scott Case are based upon general principles, while the Williams Case rests upon section 5020 of the Code of 1896. Section 7280 of the Code of 1907 authorizes the court to excuse from service any person “if he is disqualified or exempt, or for any other reasonable cause, to be determined by the court.” It is true that- this section appears in the Criminal Code, but it has been applied by — 561 — this court in civil cases.—Calhoun County v. Watson, 152 Ala. 554, 560, 44 South. 702, 704. In the last-cited case this court said: “The purpose of the law is to afford a fair and impartial trial to all litigants, which can only be accomplished by absolutely unbiased juries, and trial judges cannot be too zealous in ridding the jury of men whose interest and environment is calculated to sway them in the slightest degree. The fact that the jurors excused by the court were employed by the commissioners may be a slight incentive for bias, yet it Avas the action of the commissioners that was being assailed, by this suit, and we think the action of the court Avas authorized by section 5020 of the Code of 1896.” And in the case of Stennett v. City of Bessemer, 154 Ala. 637, 45 South. 890, the court was justified in excusing a juror aaTlo had a similar case against the defendant, because “the law implies bias.” In the case of Calhoun v. Hannan & Michael, 87 Ala. 277, 284, 6 South. 291, 292, this court declined to put the loAver court in error for refusing to alloAV a challenge of a juror, because he was an employee of another party Avho had a similar suit in court; the court saying: “The facts shoAvn were sufficient to support a challenge for favor, the effect of which is to require an investigation by the court into the question whether the juror is biased in point of fact; but, of themselves, they are not sufficient to show this, or to raise a disqualifying presumption of bias.” It Avill be noticed that in the case just cited the juror was not an employee of the defendant (see statement of case, at page 279 of 87 Ala., at page 291 of 6 South.), also that the court was sustaining, and not reversing, the discretionary action of the trial court. There was no error in the action of the court in excusing said jurors. — 562 — The court erred in allowing the question to and answer of the witness Worthington, as to the customary traveling by people on the track at the place where the injury occurred. This was irrelevant to the issues in this case, and has been heretofore condemned by this court.—M. & C. R. R. Co. v. Womack, Adm'r, 84 Ala. 149, 150, 4 South. 618; Glass v. M. & C. R. R. Co., 94 Ala. 581, 586, 10 South. 215. The witness Frazier testified, on redirect examination, that: “It don’t take both hands to manipulate the reverse lever, unless it is unusually hard. One grasp of the hand will work both; that is, unfasten and move it. I don’t think the lever could be handled quicker with both hands than one, on this particular engine. Both hands applied to some things. You could handle it quicker; but, if the lever works like that lever works* he could handle it with one hand as quick as with both. I could handle it just as quick with one hand as with both.” In view of this explicit description by the witness, the jury could not be misled by the alloAvance of the further question to the witness: “Suppose it was hard to handle, would the use of both hands assist him?” And the answer to it: “If it was hard to handle, of course two hands could handle it better than one.” Consequently, if the overruling of the objection to the question, and of the motion to exclude the answer, was error, it was without injury. At most it Avas only a repetition of what had already been testified to. There was no error in overruling the objection to the question to the witness Roberta Young: “H'e left children, did he?” When this case was first before this court, the text of the opinion is made to state that there was error in this question (L. & N. R. R. Co. v. Banks, Adm'r, 132 Ala. 489, 31 South. 573); but the page of — 563 — “errata” in that volume shows that this should read: “There was no error.” See, also, Ala. Min. R. Co. v. Jones, Adm'r, 114 Ala. 519, 532, 21 South. 507, 62 Am. St. Rep. 121. When the case just cited was before this court, at a subsequent term, it was held only that “that was not legitimate occasion to show the ages of his minor children.”—Ala. Min. R. Co. v. Jones, Adm'r, 121 Ala. 113, 119, 25 South. 814, 816. There was no error in allowing the hypothetical question to the witness Bonham. The hypotheses in the-question correspond with the description of the engine by the witness McDermott. Under the facts of this case,- charge 3, requested by the plaintiff, and given, may have been misleading or confusing; yet there was no reversible error in giving it. It is not easy to tell exactly what is meant by the-eighth charge given at the request of plaintiff; but we-understand the substance of it to be that, although the engine could not have been stopped before the foot-board reached Lawrence, yet if it could have been stopped before the brake beam reached him, and as a matter of fact, the footboard merely passed over him, and the brake beam killed him, by reason of the negligence of the engineer in charge in failing to use the means to> stop the engine, then the defendant would be liable, provided the engineer knew of the perilous condition of Lawrence in time to have stopped the engine and prevented the injury. There was no error in giving this charge, although it was confusing. It might have been cleared by a countercharge. There was no error in giving charge 9, on request of the plaintiff. — 564 — These charges do not, as the appellant insists, assume that the engineer did not know of Lawrence’s perilous condition, but merely state that if he did know, etc. Charges 5 and 11, requested by the defendant, besides being in bad form and invasive of the province of the jury, refer to certain counts which do not appear in the record. This record shows only counts 1 and 2. Consequently we cannot put the court in error for refusing said charges. Charge 6, requested by the defendant, was properly refused. It is not only the means known to him, but the means known to skillful engineers, that the engineer should use. There was no error in the refusal to give charge 7, requested by defendant. If the engineer, McDermott, knew that Lawrence was under the tender, which necessarily means that he was alive and in a position of peril, it was his duty to use all means known to skillful engineers to stop the engine and tender, if it could be done, in order to avert further injury to the intestate, whether he was mortally injured or not. Although a man may be mortally injured, yet, so long as he is a living man, it is the duty of the engineer to avoid further injury to him.. Charge 15, requested by defendant, was invasive of the province of the jury and properly refused.—W. U. Tel. Co. v. Benson, 159 Ala. 257, 272, 48 South. 712. There was no error in the refusal to give charge 16, •requested by the defendant. While it is true, as heretofore held by this court, that the intestate was clearly guilty of contributory negligence, also that the plaintiff’s own witness, McDermott, the engineer, testified that, as soon as he saw Lawrence start towards the track, he used all the means at his command to stop the engine, yet the plaintiff also examined the witness Bon — 565 — ham, who testified that the engine could have been stopped within four or five feet, and this testimony was not objected to on the ground that the plaintiff was seeking to contradict his own witness. For reasons already stated, and because charge 17, requested by the defendant, was argumentative, there was no error in refusing to give it. Charge 20, requested by the defendant, was properly refused.—Rowe v. Barber, 93 Ala. 422, 425, 426, 8 South. 865; Harris v. Russell, 93 Ala. 60, 68, 69, 9 South. 541; L. & N. R. R. Co. v. Davis, 99 Ala. 593, 595, 603, 12 South. 786; Glover v. Gentry & Moore, Adm'rs, 104 Ala. 223, 226, 233, 16 South. 38; Florence Cotton & I. Co. v. Field, 104 Ala. 471, 473, 480, 16 South. 538; Torrey v. Burney, 113 Ala. 496, 504, 21 South. 348; Coghill v. Kennedy, 119 Ala. 644, 666, 667. Charge 23, requested by the defendant, besides being misleading, does not state when the brakes were applied, etc., and was properly refused. Charge 24, requested by the defendant, was properly refused. It is misleading. While it is true that the case hangs on the question whether the engineer used all of the instrumentalities for stopping the engine at his command, and used them promptly, yet it cannot be said that “whether the engine was stopped as quick as it could have been or not is immaterial,” for it may be material in aiding the jury to determine the fact as to whether the instrumentalities were used promptly. There was no error in refusing to give charge 18, requested by the defendant. It was open to the jury to find that the intestate was killed by being struck by the brake beam, before he was dragged, and' the evidence was in conflict as to whether the engine could have been stopped before the brake beam reached him. Charge 29 should have been given. — 566 — Charge 42, requested by the defendant, was properly refused. This form of charge has been frequently condemned by this court as argumentative and accentuating improperly certain parts of the evidence.—Austin v. State, 145 Ala. 37, 40, 40 South. 989; Hill v. State, 156 Ala. 3, 6, 10, 46 South. 864; W. U. Tel. Co. v. Benson, 159 Ala. 256, 258, 272, 48 South. 712. Charge 46, requested by the defendant, was properly refused. The court cannot be required to state what the evidence proves; that is for the jury to determine. Charge 62, requested by the defendant, was properly refused, for reasons given in regard to charge 18. Charge 75, requested by the defendant, is a literal reproduction of a portion of the opinion of this court when the case was last before it, and should have been given.—L. & N. R. R. Co. v. Young, 153 Ala. 232, 45 South. 240 (first column), 16 L. R. A. (N. S.) 301. There was no error in the refusal to give charge 76, requested' by the defendant, for several reasons. As above shown, the court cannot be required to state what facts the evidence established. Each charge requested must be complete in itself, and, taking this charge alone, there is nothing in it to show what the words “such warning” refer to. Charge 91, requested by the defendant, was properly refused. It does not hypothesize that the negligence referred to contributed proximately to the injury. The judgment of the court is reversed, and the cause remanded. Reversed and remanded. Dowdell, C. J., and McClellan and Mayfield, JJ., concur.