Leystrom v. City of Ada
| Decision Date | 18 March 1910 |
| Docket Number | 16,391 - (62) |
| Citation | 125 N.W. 507,110 Minn. 340 |
| Parties | AGNES LEYSTROM v. CITY OF ADA |
| Court | Minnesota Supreme Court |
Action in the district court for Norman county to recover $2,000 for personal injuries. The answer was a general denial. The case was tried before Grindeland, J., and a jury which returned a verdict in favor of plaintiff in the sum of $280. Defendant's motion for judgment notwithstanding the verdict or for a new trial was denied. From the judgment entered pursuant to the verdict, defendant appealed. Affirmed.
Discharge of Jurors -- Discretion of Court.
The trial judge in the district court is vested with a general discretion in the calling and management of jurors, and may after summoning talesmen, excuse them from service, if before being impaneled in a particular action, the jurors upon the regular panel become available.
Reversible Error -- Incorrect Ruling -- Witness.
Where the court incorrectly rules a witness to be subject to cross-examination as an adverse party, within the provisions of section 4662, R.L. 1905, it is still necessary, in order to predicate reversible error upon such ruling, to show that one has been prejudiced in some way in the subsequent events of the trial based upon the ruling as to the status of the witness.
Verdict Sustained by Evidence.
Evidence considered, and held to justify the verdict.
F. H. Peterson and J. M. Hetland, for appellant.
W. E. Rowe and Peter Matson, for respondent.
The plaintiff fell and was injured while walking on a sidewalk upon a public street in the city of Ada by having the heel of her shoe caught in a small opening in the walk. The defect in the sidewalk complained of was where a cement and wooden walk joined. At this point a 2X6 or 2X4 scantling set on edge had been wedged in between the cement and the planks, a hole 1 3/4 inches in width and 5 inches long had been worn in the scantling and was of just sufficient size to admit the heel of plaintiff's shoe. The sidewalk was at least fairly well lighted, and the plaintiff appears to have been walking upon it in an ordinary manner and without any knowledge of this particular defect. When the case was called for trial in the district court, the jury to which a previous case had been submitted was engaged in deliberating upon its verdict, and a sufficient number of jurors to try this action could not be secured from the regular panel. Talesmen were summoned, and examined as to their qualifications by counsel for defendant, who interposed no challenge for cause. At this point the jury engaged upon the other case returned into court, and upon motion of plaintiff's counsel the talesmen summoned as jurors in this case were excused, and the parties required to select a jury from the regular panel. Upon the trial the street commissioner and one of the aldermen of the defendant city were called as witnesses upon behalf of the plaintiff, and her counsel was by the court permitted to cross-examine them, under the statute permitting such examination of an adverse party, or an officer or agent of such adverse party.
Upon this appeal the defendant contends: (1) That the dismissal of the talesmen and the substitution of the regular jurors on the panel was error. (2) That it was error to permit the cross-examination of a public officer in the manner described. (3) That the evidence was insufficient to justify a verdict, because (a) there was no evidence of negligence upon the part of the defendant; (b) the plaintiff was guilty of contributory negligence.
1. The record does not show that the defendant was in any manner prejudiced by the order of the court with reference to the jurors. Neither party had an absolute right to a trial by any particular jury or juror. The management of the jury and the summoning of talesmen rest very largely in the discretion of the court, and, unless a party can show that he has been by the arbitrary action of the court compelled to accept as a juror one who is unfit to act as such upon the trial of the case, no abuse of discretion is shown. In this case none of the jurors excused had been actually sworn. A regular panel had been summoned for the determination of the cases for trial at that term, and it was discretionary with the court whether it would dismiss the talesmen who had not been sworn to try this particular case when the regular jurors became available, or to permit the talesmen so...
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