43 Minn. 414 | Minn. | 1890
This was an action to recover damages for personal injuries caused by the alleged negligence of defendant. The negligence complained of was blowing a locomotive whistle in the city of Duluth, in close proximity to some teams, one of which became frightened thereby, and ran away, and injured the plaintiff while in one of the streets of the city. The complaint was framed with a view of alleging a cause of action for negligence both under an ordinance of the village (now city) of Duluth forbidding the blowing of such whistles within certain limits except for certain specified purposes, and also independently of the ordinance; the allegations being that the whistle was blown carelessly, negligently, wantonly, and recklessly, with frightful noise, at or near a crossing, and near a team then lawfully in a public highway. While introducing his evidence, plaintiff’s counsel evidently had in mind making out a ease under the ordinance ; yet all the evidence, except the ordinance itself, was relevant on the general question of negligence, without regard to any ordinance. If there was prejudicial error in admitting the ordinance, the record discloses none; and the evidence was sufficient to justify the verdict.
Whether the whistle was blown, and whether it caused the team to run away which injured plaintiff, were, under the testimony, certainly, questions for the jury. So, also, was the question whether, under the circumstances, the blowing of the whistle was negligent. It is a matter of common knowledge that cars and locomotives cannot be moved without making certain noises, but blowing the locomotive
The question whether the driver of the team which ran away left his team unguarded, if material at all, was also, under the evidence, one for the jury. But, even if he was negligent in this respect, it would simply be a case where the negligence of a third party contributed with that of defendant to cause the injury. Again, the most that can be claimed for the evidence as to plaintiff’s contributory negligence is that it also presented a question for the jury. The fact that
Hence the only important question in the case is whether the admission in evidence of the ordinance, assuming that it was void, was prejudicial error. It was admitted against defendant’s objection, but, when the judge came to charge the jury, he expressly told them that it was not valid, and that they need not consider it, but place the case on the same ground that it would be if there was no ordinance; and he then proceeded, and charged fully and correctly on the law of the case, without reference to, and independently of, any ordinance. Where improper evidence bearing upon the facts of a case has once been admitted, the courts are very slow to hold that the error is remedied by subsequently withdrawing it from the consideration of the jury, and will never do so unless it is very clear, from the nature of the case, that the party could not have been prejudiced. The reason for this is that it is usually impossible to say that the impression once made upon the minds of the jury by the objectionable testimony was wholly removed by its subsequent withdrawal, or by instructions from the court to disregard it. But this is an entirely different case. The ordinance was not offered to prove, and it did not tend to prove, any of the facts connected with the case, but merely to prove the rule of law applicable to it. The only necessity for introducing such ordinances is that, unlike general statutes or laws, the courts do not take judicial notice of them. The case is substantially the same as if a court should erroneously state to the jury that a certain statute was applicable to a case, or should give them any incorrect instruction as to the law, but should subsequently retract it, by expressly and unequivocally telling them that it was wrong and should be disregarded, and then giving them correct instructions. It has been repeatedly held that this is not prejudicial error, provided the court corrects its mistake in such clear and
Order affirmed.
Vanderburgh, J., took no part in this case.