119 Minn. 470 | Minn. | 1912
Action to recover damages for personal injuries suffered by the plaintiff in colliding with the defendant’s automobthe. The cause was tried to a jury, who returned a verdict for the plaintiff. This is an appeal by the defendant from an order denying him a new trial.
The complaint charged in substance that whthe the plaintiff was crossing Main street in Madelia, on November 29, 1910, he was-run down and injured by an automobthe owned and driven by the-defendant, which accident occurred without fault on the plaintiff’s, part, and because the defendant was negligent in propelling the machine at an unlawful and high rate of speed, without lights and. in violation of law. The defendant answered, admitting that the plaintiff was injured and putting in issue the other claims .recited. It appeared on the trial that the accident happened in the evening-of the day stated.
1. We conclude from an examination of the record that there was. sufficient evidence to warrant the jury in finding that the defendant was-negligent as charged. In fact the defendant makes no serious, claim to the contrary.
2. The defendant asserts that the court erred in charging the jury-as follows:
“I will further charge you in this case, that if the plaintiff was-negligent in this case, and did place himself in a negligent position,, and'if the defendant, before the happening of the injury or accident, discovered the negligence of the plaintiff, but by and through the want of ordinary care upon his part, after discovering the danger-of the plaintiff, the danger that he was in, caused by his own negligence, nevertheless ran against him and injured him, operating his-machine without using ordinary care, that the plaintiff can recover- and should recover a verdict at your hands. On the other hand I’ charge you, gentlemen, that if the defendant, after discovering that the plaintiff had placed himself in a dangerous position, was negligent, guilty of negligence on his part, if the defendant used- ordinary care on his part, that the plaintiff cannot recover.”
The defendant contends that this instruction constituted error for the following reasons: (a) That the complaint contains no allega
We are not agreed upon the proper determination of the point of pleading here involved, as an abstract proposition. We hold, however, that it is not necessary to the decision of this ease to pass upon such question, because, at most, if there were sufficient evidence in the record to justify the court in submitting the so-called “wilful negligence” of the defendant to the jury, a question which we will presently consider, then under the facts we would have a case, we think, of mere harmless variance. R. L. 1905, § 4158. Wilcox Lumber Co. v. Ritterman, 88 Minn. 18, 92 N. W. 472; Kaufman v. Barbour, 103 Minn. 173, 114 N. W. 738. The several features of the cause of the accident were fully covered by the evidence and evidently the defendant was not misled. From the fact that the alternative portion of the instruction complained of embraces the substance of one of the defendant’s requests, it is apparent, also, that this issue was litigated without objection, and hence objections now made are unavailing. 2 Dunnell, Minn. Dig. § 7675. Moreover, no exception was taken on the trial to the portion of the charge now criticised, which, we hold, was necessary in order to raise the question now under consideration, under the rule of Steinbauer v. Stone, 85 Minn. 274, 88 N. W. 754, and subsequent cases developing its application.
3. The defendant claims that the trial court erred in refusing to give the following instruction, requested by him:
“You are instructed that if the plaintiff did not look at the time he started across the street, or whthe crossing the street, or until the automobthe was upon him, he did not exercise common prudence, and was guilty of contributory negligence.”
We find no error here. The jury were fully and fairly instructed concerning the defendant’s claim that the plaintiff was guilty of contributory negligence, and the requested instruction comes within the rule that the court is not required to charge as to the effect of particular items of evidence or what conclusion may or may not follow therefrom. Senro v. Chicago & N. W. Ry. Co. 115 Minn. 110, 131 N. W. 1011. We also think that, assuming this requested instruction to be abstractly correct, which is more than doubtful in the light of Stallman v. Shea, 99 Minn. 422, 109 N. W. 824, it was not warranted by the evidence.
4. The last claim urged by the defendant is that there was misconduct on the part of the jury. The showing made by the defendant below in support of this claim amounts to this: One of the witnesses called by the plaintiff, after testifying on the trial favorably to the plaintiff’s theory, and also being strongly prejudiced in the
Order affirmed.