Omaha & R. V. R. Co. v. Cook. Q. I presume so. But your situation is such that you could, so far as you know, fairly and impartially render a verdict in this case? A. Yes, sir. Further examination by Mr. Kendall: Q. I believe you stated that you had received some favors from the railroad company? A. Yes, sir. Q. And by reason of receiving these favors you feel somewhat under obligation to the company, do you? A. I do. Q. And that is this same Omaha & Republican Valley Railroad Company? A. Yes, sir. It is certainly to my interest to stand in well with the railroad company. Q. Think you would have a kind of a feeling that if all other things were equal, if you could return the favor you would like to do it, would you? A. Yes, sir. Mr. Kendall challenges the juror for cause. Q. That is a general opinion or prejudice that way, is it? Just a general opinion in favor of the company? A. Yes, sir, the same as I would have for any person else that has shown me a favor. That is all. Q. Supposing it to have been a person or a railroad company, or what not, that person being a party to a suit such as we have here this morniug, would past favors and any desire that you might have to do them a favor, have any bearing upon your consideration of the evidence in the case? A. No, sir; decidedly no. Q. Would it in any manner influence your verdict for or against either party? A. No, sir. Q. You could enter into it perfectly free from any bias in either direction? A. Yes, sir. Omaha & R. V. R. Co. v. Cook, Q. Laying that all aside and trying it entirely upon the evidence and the law? A. Yes, sir. Afterwards, and before the jury was completed, the plaintiff below renewed his challenge to Mr. Salter, and the record shows the following: Court: Mr. Salter, is there any reason, or are you sensible of any reason why you should not sit upon this jury? A. I am not, sir. The court excuses Mr. Salter and the defendant excepts. Court: I will allow each of you a peremptory challenge to any one that may be called in Mr. Salter's stead, and also allow the defendant to withdraw its waiver of the last peremptory challenge. It is evident that the court erred in overruling the challenge in the first instance, and no doubt on reflection became convinced of that fact and hence sustained the challenge. A fair trial before an impartial jury means one where the jurors are entirely indifferent between the parties. In Curry v. State, 4 Neb., 545, it was held that to justify the retention of a juror on the panel he must be entirely indifferent between the parties. It is said: "If he (the juror) express the least doubt of his ability to do so he should not, in the face of a challenge for cause, be retained. And even where by his formal answers the juror brings himself within the letter of the statutory qualification, if the court. should discover the least symptom of prejudice or unfairness, or an evident desire to sit in the case, he should, in justice both to the state and the accused, be rejected." This court, from the first, has held that jurors could accept no favors from either party, as the effect might, and probably would, be to affect its verdict. (Ensign v. Harney, 15 Neb., 330; Vose v. Muller, 23 Id., 171; Johnson v. Greim, 17 Id., 447.) It is very clear that the relations between the railway company and the juror were too Omaha & R. V. R. Co. v. Cook. intimate to secure impartiality on the part of the juror named, and the court did not err in discharging him. The juror W. B. Spangler, a former employe of the company, was also excused, which it is claimed is erroneous; and the same is true of the juror Jackson. He testifies: Q. Mr. Jackson, does your family reside here? A. No, sir. Q. Where is your family? A. Grand Island. Q. How long has your family resided in Grand Island? A. Seven or eight years. Eight years, I guess. Q. Then you are over here temporarily running the hotel are you? A. Yes, sir. Q. Have you exercised the right of the ballot here? Q. Where is your voting place? A. Well, I don't know whether I would be a voter here or not. I did not try to vote. Q. You were here for the temporary purpose of conducting the hotel? A. Yes, sir. Q. How long does your lease run for the hotel? A. Until to-morrow night. Q. Where are you going then? A. I haven't hardly made up my mind where I shall go. Q. Return to your family for the present? A. For the present, yes, sir. By Mr. Kelly: Q. Do you consider yourself a resident of this county? A. Well, I don't know whether I would be or not. Q. I am asking you what you consider yourself? A. Why, yes, sir; so long as I stay here, I suppose I They came around and assessed me the other day. Personal tax, I suppose they call it. am. It is very clear that Mr. Jackson was not an elector of Omaha & R. V. R. Co. v. Cook. Howard county and therefore the challenge was properly sustained. In addition to this, the excusing of a person called as a juror from serving on the jury where there is any doubt of his fairness or qualifications is not ground of error. (Richards v. State, 36 Neb., 18; State v. Miller, 29 Kan., 43; Maxw., Cr. Proc., 581.) In the case cited from Kansas it is said: "We can hardly see how the court could commit substantial error by discharging any person from the jury, when twelve other good, lawful, and competent men could easily be had to serve on the jury. (Stout v. Hyatt, 13 Kan., 232; Atchinson, T. & S. F. R. Co. v. Franklin, 23 Id., 74.) There is an immense difference between discharging a juror and retaining him. To discharge him can seldom, if ever, do any harm, while to retain him, if his competency is doubtful, may do immense injury to one party or the other." There was no error, therefore, in discharging these jurors as there is no complaint that a fair jury was not obtained. There is no objection made to the instructions, so that the only remaining question is in regard to the evidence. There is testimony in the record that the engineer and fireman saw the plaintiff below on the track for at least seventy rods; that she was walking in the same direction that the train was going. There is also testimony that tends to show that her mind seemed to be absorbed; that the whistle was not sounded until within about a car's length, when the plaintiff below attempted to get off the track but was caught while attempting to do so, and sustained the injuries in question. There is also testimony that had the whistle been blown at the proper time to enable her to be apprised of the danger she could and in all probability would have left the track and the accident been avoided. In effect the issue is that although the plaintiff below was a trespasser on the railway track still the employes of the company could not inflict the injuries charged upon her Omaha & R. V. R. Co. v. Cook. if by the exercise of ordinary care they would have been prevented. (2 Thompson, Neg., 1157; Barker v. Savage, 45 N. Y., 191, 194; Brown v. Lynn, 31 Pa. St., 510; Northern C. R. Co. v. Price, 29 Md., 420; Locke v. First Division St. Paul & P. R. Co, 15 Minn., 283; Nelson v. Atlantic & P. R. Co., 68 Mo., 593; O'Keefe v. Chicago, R. I. & P. R. Co., 32 Ia., 467; Morris v. Chicago, B. & Q. R. Co., 45 Id., 29.) Compare Lannen v. Albany Gas Light Co., 44 N. Y., 459, affirming 46 Barb. [N. Y.], 264. The rule is very clearly stated by Judge Thompson in his valuable work on Negligence, pp. 1105, 1157. In McKean v. Burlington, C. R. & N. R. Co., 55 Ia., 192 [7 N. W. Rep., 505], it is said the rule is required by humanity and reason, citing Morris v. Chicago, B. & Q. R. Co., 45 Ia., 29. To the same effect: Brown v. Hannibal & St. J. R. Co., 50 Mo., 461; Omaha H. R. Co. v. Doolittle, 7 Neb., 481; Burnett v. Burlington & M. R. R. Co., 16 Neb., 332 [20 N. W. Rep., 280]; Cook v. Pickrel, 20 Neb., 433 [30 N. W. Rep., 421]; Union P. R. Co. v. Sue, 25 Neb., 772 [41 N. W. Rep., 801]. Even if it be conceded that the plaintiff below was unlawfully on the track, and did not look back to see if a train was approaching, still there is testimony in the record from which the jury would be warranted in finding that, after the engineer became aware of the perilous condition of the plaintiff below, he could, by the exercise of ordinary care, have stopped the engine. This was proper to submit to the jury, and as it was fairly submitted there is no valid ground on which to set the verdict aside. The judgment is therefore AFFIRMED. THE other judges concur. |