By the Court, Crockett, J.:
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 [330]*330right of peremptory challenge as to the nine jurors at that time, if at all; and thereupon the counsel excepted to this ruling, and challenged peremptorily two of the nine persons. Other jurors were then called and examined as to their competency, some of whom were excused for cause and two were challenged peremptorily by the defendant, whose peremptory challenges were thus exhausted. The whole twelve were then sworn to try the cause.
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, [331]*331before exercising his right of peremptory challenge as to any, and if some are excused for cause, the deficiency must be supplied with other names, who may in like manner be examined, until there shall be found in the box twelve men, whom the Court shall adjudge to be competent and qualified jurors; and thereupon each party may exercise his . right of peremptory challenge. But neither can be required to exercise it prior to this, stage of the proceedings. The theory of the law probably is that the right to challenge peremptorily cannot be exercised so judiciously until the panel is filled with competent and qualified jurors, of whom each party is allowed to reject a certain number without assigning any reason therefor.” I am convinced this is the proper interpretation of these sections, and that the practice here indicated is the correct one. If a different rule prevailed, the right of peremptory challenge might and often would be so fettered as to render it of but little practical value. If, for example, eleven of the twelve jurors whose names are first drawn should be successfully challenged for cause, and if the parties should then be forced to exercise the right of peremptory challenge, as to the remaining juror, being ignorant, of course, of the names of the eleven jurors next to be presented, it is clear that the range within which this valuable right would thus be limited would be so narrow as to be of no practical utility. If the twelfth juror in the case supposed should be accepted, it would be the duty of the Clerk to draw from the box eleven other names to complete the panel; and if ten of those should be challenged for cause, only one would remain, in respect to whom the parties would again be compelled to exercise the right of peremptory challenge. This proceeding might be repeated until the peremptory challenges were exhausted, and the result would be that in every instance the party had been forced to exercise his right of challenge when only one juror was before him. This would so hamper the right as to ren[332]*332der it practically valueless. As we have already seen, none of the jurors are to be sworn to try the cause until “the jury is completed,” and at any time before the jury is sworn either party may exercise the right of peremptory challenge, but neither can be compelled to do so “ until there shall be found in the box twelve men, whom the Court shall adjudge to be competent and qualified jurors.” In criminal cases the Criminal Practice Act prescribes a different rule, as was decided in People v. Scoggins, supra.
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 [333]
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By the Court, Crockett, J.:
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 [330]*330right of peremptory challenge as to the nine jurors at that time, if at all; and thereupon the counsel excepted to this ruling, and challenged peremptorily two of the nine persons. Other jurors were then called and examined as to their competency, some of whom were excused for cause and two were challenged peremptorily by the defendant, whose peremptory challenges were thus exhausted. The whole twelve were then sworn to try the cause.
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, [331]*331before exercising his right of peremptory challenge as to any, and if some are excused for cause, the deficiency must be supplied with other names, who may in like manner be examined, until there shall be found in the box twelve men, whom the Court shall adjudge to be competent and qualified jurors; and thereupon each party may exercise his . right of peremptory challenge. But neither can be required to exercise it prior to this, stage of the proceedings. The theory of the law probably is that the right to challenge peremptorily cannot be exercised so judiciously until the panel is filled with competent and qualified jurors, of whom each party is allowed to reject a certain number without assigning any reason therefor.” I am convinced this is the proper interpretation of these sections, and that the practice here indicated is the correct one. If a different rule prevailed, the right of peremptory challenge might and often would be so fettered as to render it of but little practical value. If, for example, eleven of the twelve jurors whose names are first drawn should be successfully challenged for cause, and if the parties should then be forced to exercise the right of peremptory challenge, as to the remaining juror, being ignorant, of course, of the names of the eleven jurors next to be presented, it is clear that the range within which this valuable right would thus be limited would be so narrow as to be of no practical utility. If the twelfth juror in the case supposed should be accepted, it would be the duty of the Clerk to draw from the box eleven other names to complete the panel; and if ten of those should be challenged for cause, only one would remain, in respect to whom the parties would again be compelled to exercise the right of peremptory challenge. This proceeding might be repeated until the peremptory challenges were exhausted, and the result would be that in every instance the party had been forced to exercise his right of challenge when only one juror was before him. This would so hamper the right as to ren[332]*332der it practically valueless. As we have already seen, none of the jurors are to be sworn to try the cause until “the jury is completed,” and at any time before the jury is sworn either party may exercise the right of peremptory challenge, but neither can be compelled to do so “ until there shall be found in the box twelve men, whom the Court shall adjudge to be competent and qualified jurors.” In criminal cases the Criminal Practice Act prescribes a different rule, as was decided in People v. Scoggins, supra.
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 [333]*333widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages, pecuniary and exemplary, as they shall deem fair and just, and may take into consideration the pecuniary injury resulting from such death to the wife and next of kin of such deceased person.” Considering the evil intended to be remedied by this statute, it is obvious, I think, that the amount of the recovery is not to be affected by the question whether or not the deceased left a widow, or if so, whether she survived until the trial of the action. The jury is authorized to take into consideration the pecuniary injury resulting to those who were most nearly related to the deceased, and who in the ordinary course of human affairs would probably have been the most benefited by his future labors if he had lived. If he left a widow, she would, perhaps, have been the principal recipient of these benefits; and if there were children, they would probably have received the remainder. But if there be no widow, the whole of his earnings would justly and naturally go to the children. The statute intends the recovery to be a humane provision for those who have lost their natural protector, through the negligence of another; and when the recovery is had, it is to be distributed exclusively to the widow and children, if the widow be then living, and if not, then wholly to the children, if there be any, and if there be no children, then to the next of kin.
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.
[334]*334Another point made at the trial was, that the Court, against the objection of the defendant, admitted eviden'ce as to the business education of the deceased, and as to his habits of sobriety and economy. But I think the evidence was competent and pertinent. It tended to prove that his earnings, if he had lived, would have been more valuable to his family than if he had been an uneducated, drunken spendthrift.
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 [335]*335reasonable precautions were taken to ascertain Kane’s competency and fitness for the place, but that the defendant was nevertheless deceived by fraudulent practices on the part of Kane or others, and was not justly chargeable with negligence under the particular circumstances. The question of negligence in this respect should have been left to the jury under -proper instructions from the Court.
Judgment reversed and cause remanded for a new trial.