155 Minn. 343 | Minn. | 1923
By this action plaintiff seeks to recover damages suffered as the result of a collision between his automobile and defendant’s motor truck. The complaint charged defendant with negligence in the management and operation of its truck. The answer denied negligence and charged plaintiff with contributory negligence. The trial resulted in a verdict for defendant and plaintiff has appealed from the denial of his motion for a new trial.
Plaintiff is not represented on this appeal by the counsel who tried his case, but by new counsel.
One of the assignments of error goes to the sufficiency of the evidence to support the verdict. The accident happened at about S o’clock in the evening of July 14, 1921, where a public highway, known as the Gervais road, joins the White Bear road near St. Paul. The WJiite Bear road was being paved and was not open for travel. The pavement had been laid at the junction of the two roads and was 10 or 12 inches higher than the unpaved portion of the White Bear road, because the “shoulders” on either side were yet to be put in place. The edges of the pavement were like the curbing on a street, and hence an automobile could not be driven from the Gervais road onto the pavement.
2. In charging tbe jury, tbe court used this language:
“If you should find that both of these parties failed to exercise reasonable care and that such failure was a contributing cause of tbe accident, then the plaintiff would not be entitled to recover and your verdict should be for tbe defendant, because our law is that if a man comes into court charging another with negligence and for such negligence asks for damages, he must show himself free from negligence which helped to produce tbe damages for which he seeks to recover.”
Later in tbe charge, tbe court said:
“Plaintiff brings this action, and upon him rests the burden of proof of satisfying you by a fair preponderance of testimony of the truth of the allegations of his complaint; that is, that this defendant was in fact guilty of negligence which was the direct and proximate cause of bis injury. On the other band, the burden of proof is upon tbe defendant to satisfy you by a preponderance of testimony tbat the plaintiff was guilty of contributory negligence.”
The following exception was taken:
“Plaintiff excepts to the charge of the court wherein tbe court submitted to the jury a general charge of contributory negligence, not limiting the same to the specified contributory negligence contained in the answer of the defendant.”
Plaintiff asserts that be is entitled to a new trial for error in tbe portion of the charge first above quoted. Defendant’s answer is tbat all tbe court meant to say was that one who charges another with negligence cannot get damages if his own negligence helped to bring about the injury of which he complains; that this is a correct
One of the grounds of the motion wars irregularity in the proceedings of the court which prevented plaintiff from having a fair trial. This is repeated in the assignments of error. The brief informs us that it was plaintiff’s purpose thereby to question the propriety of a remark made by the trial judge in ruling on the admission of certain evidence. Plaintiff was attempting to prove that other people traveled the G-ervais road on the evening of the accident. In sustaining an objection to this line of evidence, the court said that the testimony was that this road had been temporarily closed by the state authorities so that any person using it would use it at his own risk. There was no objection to the remark and no exception was taken. There should have been if it was thought that the remark was improper and prejudicial to plaintiff. 2 Dun-nell, Minn. Dig. § 7098. But this aside, we see no. merit in the complaint, for plaintiff’s counsel, by his cross-examination of a state highway engineer, had elicited testimony that the road was officially closed and that this meant that if it was traveled at all it w’as at
The refusal of the court to sustain plaintiff’s objections to three questions aslced in the cross-examination of one of his witnesses and one question asked in the direct examination olf a witness for defendant, is the basis of the remaining assignments of error. All the questions related to matters of no great importance and the answers were not at all likely to affect the result of the trial. Without stopping to consider whether the rulings were right or wrong, we apply the statutory rule which directs courts, in every stage of an action, to disregard all errors which do not affect the substantial rights of the party complaining of them. Section 7789, G. S. 1913.
Order affirmed.