Watson v. St. Paul City Ry. Co.

• Decision Date: 18 November 1889
• Citation: 42 Minn. 46,43 N.W. 904
• Parties: WATSON v ST. PAUL CITY RY. CO.
• Court: Minnesota Supreme Court

42 Minn. 46

43 N.W. 904

WATSONvST. PAUL CITY RY. CO.

Supreme Court of Minnesota.

Nov. 18, 1889.

(Syllabus by the Court.)

1. Under the statute in relation to struck juries, no peremptory challenges are allowed to any of the jurors composing the panel as finally made up.

2. An instruction to the jury that a street-railway company, as respects precautions for the safety of passengers, is bound to exercise the greatest care and foresight in the construction and operation of a cable line, held to state the correct rule.

3. Contradictory extrajudicial statements cannot be introduced in evidence for the purpose of impeachment until the foundation is laid by the proper preliminary inquiries of the witness whose credibility is questioned.

4. Whether improper remarks in the presence of the jury are such as are calculated to prejudice the case is to be determined, ordinarily, by the trial court; and an order granting or refusing a new trial for such cause will not be disturbed on appeal, except in case of clear abuse of discretion.

Appeal from district court, Ramsey county; WILKIN, Judge.

Action by George H. Watson, plaintiff, to recover from the St. Paul City Railway Company, defendant, for injuries received by him while a passenger upon a car running upon the cable line of defendant. The plaintiff alleged that through the defendant's negligence in employing unskilled servants, and in not providing proper machinery and appliances, defendant's cable train became unmanageable while descending a steep hill, and ran with great speed to the foot of the grade, where the car in which plaintiff was riding was thrown from the track, causing the injuries complained of. Plaintiff had a verdict. From an order denying a new trial defendant appeals.H. J. Horn, for appellant.

C. D. & T. D. O'Brien, for respondent.

VANDERBURGH, J.

1. A struck jury was summoned in this case, and upon the trial, the requisite number not appearing, the sheriff was ordered to summon a sufficient number of talesmen to complete the panel. The court refused to allow any peremptory challenges to any of the jurors, on the ground that such challenges are not allowed or contemplated by the statute providing for such juries. We think the court ruled correctly. The provision for striking takes the place of the right to peremptory challenges. 1 Thomp. Trials, § 43; Blanchard v. Brown, 1 Wall. Jr. 309; Branch v. Dawson, 36 Minn. 194, 30 N. W. Rep. 545. Our statute (Gen. St. 1878, c. 71, § 15) is copied from that of Ohio, (Laws 1853,) except that in the original act there is no provision for calling in talesmen. It is held there that the panel must be made up of the struck jurors, and if 12 do not appear, or are not brought in, the places of absentees cannot be filled by talesmen, and that there cannot be a struck jury, under the statute, unless made up of the number originally selected. Railroad Co. v. Stanley, 7 Ohio St. 156. But, under the added provision for talesmen in the statute, as adopted by the legislature in our state, talesmen may be summoned if a sufficient number of the struck jurors do not appear; and the jury still retains its distinctive character as a struck jury under the statute, in which it is clear that no provision was made for peremptory challenges, and no such challenges were contemplated. The procedure, in its essential features, resembles that for the selection of jurors in the justice's court. Gen. St. c. 65, § 58. We see no reason why the court might not, on...