BALDWIN ET ALd . .TRUSTE'ES . MO. PAC. RD. ,Co., v. HUNNICUTT'. , _BALDW , IN . E , T A . L., TRusTEES •Co. V.. OUNNICUTT. ''• 4-4992 Opinion delivered Maych.16,1936.. MASTER AND SERYANT:-- -In -action by employee of railroad •corn-pany•for damages for loss Of eye. sustained while repairing coal •- chute under direction of 'foreman the question as to.•whether employer was negligent is, .under ,Eederal . Employers' . Liability Act ;(45 VSCA, §§ 51 to , 59) ‘ . fof the jury. . 2. APPtAi: ANb ERROR.—Vis c a O ing u : n sel not acqnainted with Jurors has the'rikht to ask their names; and it 'is reversible' error' to "refUSe to permit him tO dO so. 3. MASTER 'AND. SERVANT.—In .by a, carpenter engaged' in :re-. pairing coal chute, 7for interstate: , railroad to recover damages = Tor , 'loss . of one eye-while-working under• the direction of foreman, whether carpenter Was engaged in inthrstate borrirneite wa's, under • Feaeral EMPlOYer'S"Liability ACt • • • (45 DSCA, §§ 51 6'59) for the jury. • • 4: • JURY—RIGHT OF COUNSEL—Counsel have the right, under (Mr .stat-.utes (C, & NI: Dig., §§ 6380, 6381, 6385), to question' jurors sepa-• • rately as to :their names,. business and :place of residence and to dicit other information..to enable him to exercise his right of ; Challenge for cause or Without cause. ' Appeal from Saline Circuit :Court; H.•B. Means, J , udge; reverscd. .B..E. Wiley and Richard Ryan, for aPpellan6.
442 BALDWIN ET AL., TRUSTEES MO. PAC. RD. Co., [ , 192 v. HUNNICUTT. John L. McClellan and Tom W. Campbell, for . ap-pellee. MOHANEY, J. Appellee was, at the time of receiving the injuries-hereinafter. mentioned, an employee, of. the Missouri Pacific Railroad Company as a carpenter in the B.'& B. gang. On February 24, 1934, while engaged in repairing the coal chute and tracks connected . therewith, he , received a severe and painful injury which resulted in the loss of his left eye. At the time of the injury he was working under the immediate direction of his foreman and was assisting in the removal of a 6x8 timber on the incline track, leading up . to the coal chute, which is called a guard rail. These guard rails are notched doWn'over the ends of the ties on both sides of the steel rails and about 11 1/ 2 inches therefrom. They are also held in place by what are called lag screws 5/8 x9 which are inserted through holes bored through the guard rail and a short distance into . the tie; and are driven or screwed into the tie about three inches. The lag screws have square heads and are screwed down with a wrench or driven down to fit tight on a metal waSher through . which the screws pass. Every, second tie is so fastened with a lag screw. In order to remove the guard rails it became necessary to detach the lag screws from the ties. Appellee says the proper and customary way to do this is to unscrew them with a wrench, but that they had no wrenches, that would fit the screw head. -He also says another proper way to remove them is to cut around the head with an adz, insert a claw bar, and prize them loose. On this oc:. casion, however, they : did neither, but the assistant fore-inan put a' jack under the guard rail, elevated it sufficiently to put a strain on the ties to .be detached, and his foreman handed him a twelve-pound maul and directed him to strike the ties and drive them free from the lag screws. After striking the tie next to the jack two or three blowS, something flew up, struck him on the lip, cutting it and slightly injuring his nose and struck his left eye with such force as to destroy the eye-ball which necessitated its.removal. He brought this action to recover damages for his injuries under the Federal . Employers' Liability Act, and
AK.] BALDWIN ET AL.; TRUSTEES MO. PAC. RD. CO .; 443
V. HUNNICUTT. alleged negligence as follows': "When plaintiff struck said tie with said maul; as directed' by his foreman, a large metal spike: that 'had been • negligently' and careleSsly left on said . track by the- agents, servants and emL ployees of*the defendants,-and near said tie which plaintiff struck, • was caused to be knocked upward and thrown viOlently against-the plaintiff," etc. Trial . resulted 'in .a verdict and judgment -against: appellants in the' slim of $10,000. For a reversal of -the jUd'gment,. appellants argue' a nuMber of assignments . of error.; In view of the disposition we Ma:ke of the ease, We think it Unnecessary . to discuss them all in detaiL it is very earnestly, insisted that the' evidence is inSufficient -to establish negligence,: Or to take- the qUestion of negligence to . the jury. While nd -Witness . testified that "a•large . inetal, spike had' been neg.': ligently and'earelessly left on 'said track—and near .said tie which plaintiff struck;" something did fly up and hit hiin causing , the injuries COMplained of. No 'witness tes tified as to what it was that flew up and : hit him, whether a' loose spike lying on the 'tic or . the guard raii or the track, whether the rail sPike holding the steel rail mr 'the tie being 'struck or whether thelag Screw from whiCh the tie was being driven 'broke' loose therefrom, and flew up and hit hiM. As .. stated above, appellee testified there were two safe and customary ways -to remove 'the lag screws, either with a wrench or with an' -adi and a -CrOW bar, but that he had never pounded' them loose' With a maul. -:Witnes'ses,for appellants testified that, in additihn to these two ways -to remove them, the 'method employed at the time of this injury was also used, and that- all three Methods were considered safe and Proper. The .majority are:of the opinion that the _evidenee . was sufficient td go' to-the Jury on the 'question of: :negligence since appellee was acting under the imMediate directions of his . fore-: man in the manner of doing the Work,.and that the injury reeeived or some injury Might reasonably have been foreseen by the exercise of ordinary, care as to the manner of doing the work , thy the :foreman. Mr. Justice BUTLER, Mr. Justice' BAKER and the•writer do . not agree that any
444 BALowix ET TRUSTEES Mo. PAg. R. -Co.; [192 v. HUNNICUTT. negligence. bas been, established, but on the..contrary. a directed verdict should have been given appellants. •• . Another assignment of error relate§.to the impaneling of tbe jury . to. try the case. Twelve of the regular panel were out On another case. The court directed the sheriff:to call twelve bystanders whose names were placed in the -box with the remaining Members of the regnlar panel. The clerk by direction of the court .drew eighteen names from the box. The court examined them on their voir dire, and all appeared qualified. Counsel for appel-lee was then asked if he desired to ask any further questions, and• answered in the negative,. Counsel for: appellants was then asked the, same question by the . court, when the : following occurred : "Mr. Ryan :. I want to ask a question or two, but I would like to know the.jurors, I don't know them by name; will you permit me. to ask who, No..1 juror is? I don't know . them.. The Court: That is where you are unfortunate in not living in:Saline County. Mr. Ryan: Note my' exception : to' the ruling of the court. : I certainly would like to live down.here, jfJ could make .a living down here.": , . . In this we think the court fell into error ;calling. for it reverSal of the judgment. • We think . counsel.had the right to interrogate the jurors to . determine their .namesi residence, business, and such . other:information as would enable bim to exercise his right of challenge for'cause or peremptory challenge' without cause. In Clark v. State, 154 Ark. 592, 243 S. W. 868, we held that a party _is entitled to the 'same latitude in examining a juror to determine whether to exercise a peremptory challenge as when seeking information relative to challenge for cause, subject to the sound discretion of the conrt. 'The cdurt not only denied counsel this right, but in doing so—faCetiously, no doubt—hurtful, nevertbeleSs—stated that . counsel was unfortunate in not knoWing the jurors by name, 'because' he did. hot live in-Saline County. The error, however, is the denial of a litigant tbe right to try to determine, ih good faith,. by .exaMination on. voir .dire,.who and what the jurors are who are to try his case. The question is 'also argued as to whether appellee was engaged in interstate commerce within the meanimi:
, ARK:] BALDWIN ET AL., TRUSTEES MO. PAC. RD. Co., 445
v. HUNNICUTT. of :the. Federal Employers'. Liability Act. We, think the evidence sufficient to take that question to the jury. Other questions are . argued .. which may not -arise on another trial, and we dO nof,diSeuss the* . For the error indicated, the judgment. is .reversed, aml . the cause remanded ..for a new trial. . 'McITAX,''.1..(SUpplémental opinion on rehearing), yehearing, Connsel for appellee insist that they 'do not 'know 'of 'any provisiOn of law in this State that' entitles . : either party-to , a civil suit to . have 'each .proposed juror stand and be separately interrogated by counsel." Section : 6380 of Crawford & Moses" DigeSt provides that : "In 'order to ,I determine a challenge for canse the Particular 'juror or jurors challenged may' be sworn,' or,' at the instance, of , either party, -all of the jurors may 'be Sworn to make true and perfect answers to sUch questions as may be demanded, of them touching their qualifications as, jurors. The court may allow : other testimony , in .re-: gard to .the qualifications of any juror." The next.section. provides that each ,party shall have three peremp, tory; challenges: and .:§ :0385 , provides ;the procedure., for challenge , s for cause. .This court has recognized the right of litigants in:civil cases to examine the jurors separately: ;' In 111. &S.. R. go. v. _Aiken, :100 Ark. 437, 140 S. 1V,, 698, this .court .said,: , ` . `,There is but .one other. assignment, of ; error, and, that relates to the . ruling of, .the court.in,.refusing.to permit defendanrs.counsel to pursue the examination:of . ajuror as to. his bias. After a lengthy. examination of , the .juror . by Cou4sel, the , court stopped the earninatiou, and:said that it. was . sufacient.-; .Counspl-then challenged the juror peremptorily, and agreed to:a trial of ; the case before eleven jurors. , , It.does mot appear from the . record.that defendant,exhansted its peremptory challenges and_was compelled .fo accept a juror which it otherwise youl4 not have accepted ; therefore; no prej-udiceresulted: from the ruling, even if, it was incorrect. The ,exteilt of the examination of, the juror rested, how--. ever,_within , the. sound discretion. of the trial court, .and there was . .no abuse of .that ; discr,etion.. , Defendant..was permitted to pursue :the . examination until every , ,matter
446 BALDWIN. ET AL.., TRUSTEES Mo. PAC. RD. Co. , [192 v. HUNNICUTT. bearing upon the juror 'S O qualifications seems • to • have been fully • drawn 'out." • The holding in this- case was.cited with approval in Mo. Pac. By. Co. v. Riley, 185 Ark. 699, 49 S. W. (2d) 397, where the court . said: "Exception was saved to the qualifications of One of the jurors on the panel because it was, shown upon his examination that he was a member of the board of aldermen.of the city of liot Springs. The exception to . the competency of the juror. .was based on the theory that the negligence of the city was the proxi-mate, cause . of the injuries; 'and, as. the • city was inter7 ested, the fact that the juror was an alderman diSqualified. him. It is not necessary to say whether or not this juror was -disqualified,..for there is no • howing of prejudicial error, •Since, it is not.shown that the appellant had exhausted all of its peremptory challenges." Citing cases. 'It will be seen from : the Aiken caSe,* . supra, that the discretiOn ivhicli rests in the trial- Court does not relate to' the right to examine jurors separatelycbut only to the extent-of the eXaMination Of each"sepatate juror. ThiS Salim case' is :Cited in 35 . C. J., p. 389, § 439, in'suppOrt of the folloWing "•The extent' to whiCh Parties should be allOwed • -to . ge exathining jurors as . , to their qUalifica- tions cammt well-be . governed by . any fixed tules. The exannitation is conducted Under the supervision and di: r6Ctioti of. .the trial court, 'and the 'nature and extent of the' examination and *what questions May or may not be answered nnist neeessarily be left' largely' to • the 'sound diSetetion of the • court, the exercise of which will not be interfered with unless clearly abused. In 'practice, considerable latitude iS and . generally ought to be indulged; the questions ought. tO be . confined • to matters .direetly affecting the legal qUalifidations of the jutok, and 'all questions *ought *to be allowed Which are pertinent to test the juror's competency: But such 'examination ought mit tO be ' permitted to take' an indefinitely wide range . cOncerning merely collateral: or incidental matters having seme connection With the case, and should be confined in some degree at . least to the particular cause of challenge Under investigation at the • time. * * *"
ARK'. 447 . We are, therefore, of the opinion. that litigants in civil cases, as well as in . criminal cases, have the right to examine the jurors separately,.in order to determine whether such. jurors . are, subject to challenge for .canse, .or to .elicit information on which ,to jbase the, right of peremptory challenge, subject of course to the right of the, court to control the , extent of: such examination, acting in its sound discretion: We think this right is recognized by. onr statntes ; and by the. decisions abovo,cited. The petition for rehearing is therefore, ,denied.,,,
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.