| Wis. | Jan 7, 1913
In an action by a city to recover a penalty for violating one of it's ordinances, is it prejudicial error to overrule an objection by defendant to a juror upon the ground of his being an alderman? That is the first question here. Such an occurrence characterized the trial. Whether the juror was incompetent is not the material question. It may be conceded that he was; but does it appear reasonably clear from the whole record that had he not been retained as a juror the result might probably have been more favorable for the defendant? That' is the ultimate test of efficient error. It is far short of being satisfied here. The case was quite trifling, as indicated by the fact that the offense was of such character as, in the judgment of the court, to only warrant a fine of one dollar. Moreover, there was no real dispute about the facts. The matter turned on the validity and construction of the ordinance, questions with which the jurors had nothing to do. On the whole, there seems to be no indication in the record that appellant was prejudiced by the fact that the alderman served on the jury.
Did the court err in admitting in evidence and giving effect to the ordinance? The affirmative is claimed because of ch. 516, Laws of 1907 (secs. 1636 — 50, 1636 — 51, Stats.), regulating the use of highways by persons with automobiles. The plaintiff had all the usual powers respecting regulation
Objection is made because language was used in the instructions from which the jury, as claimed, might' have gotten the idea that the presence of the obstruction at the corner was no justification for appellant turning to the "left instead of waiting for opportunity to proceed near the right-hand curb according to the terms of the ordinance, though, it is confessed, that the court did not, probably, intend to do so, but rather to leave room for the jury to find that' a person circumstanced as appellant was, may use his judgment as to whether it is possible, within the meaning of the ordinance, to proceed near the curb, and if not, to reach his destination some other way, and, perhaps, by going to the left as appellant did. It is a sufficient answer to counsel’s contention to say that, in our judgment, the ordinance means just what it is suggested the trial court inadvertently and prejudicially gave the jury to understand. The purpose was to compel persons with vehicles to proceed along the street in such order as to minimize the danger of accidents, and that in case of there being obstructions, as in this case, to wait for a clearance. We see nothing unreasonable in that. It must be assumed that the people who stood between the cars and the curb knew appellant had the right of passage superior to their right to stand, unneces
The foregoing renders some other matters discussed by appellant’s counsel immaterial. •
By tlie Court. — The judgment is affirmed.