Newton v. Minneapolis Street Railway Co. , 186 Minn. 439 ( 1932 )

It is hard to conceive of an issue more sharply defined, more exclusively of fact and less of law, than that in this case. Not only are two opposing claims of fact diametrically opposed, but also they are so clear-cut and widely separated that there is no twilight zone of uncertainty between them. Neither has any penumbra to over-lap that of the other.

For plaintiff the theory is that the unfortunate boy had gotten well in front of the street car which ran him down. For defendant the claim is that accidentally he ran into the left side or left front of the car as he was attempting to pass it. It requires much less experience than most of us have had with jurors to know that if the jury had not wholly rejected plaintiff's claim they would have allowed recovery. Their general verdict for defendant is explainable only on the theory that they did reject plaintiff's claim and adopt that of defendant. The argument here, I think, has proceeded upon that hypothesis. Therefore it is an inescapable premise for whatever else should be considered on this appeal.

I agree that the boy's admission that he heard the car start behind him did not make inadmissible testimony of the failure of tile motorman to warn by gong or whistle. I do not agree that there was error otherwise. The rulings on the attempts to introduce impeaching testimony may have been somewhat more strict than some of us think proper. Yet I think it should be held that they were within the discretion of the trial judge.

Plainly, young Newton, in passing the car on the left, violated the law and was guilty of negligence. But negligence, contributory negligence, and proximate cause were explained to the jury by succinct instructions which they could not have misunderstood. We must take it therefore that they would pay no attention to contributory negligence unless proximately a cause, or part of the cause, of the injury. As matter of plain sense, it seems to me that if the boy had gotten in front of the car and was there negligently run down, it would have made no difference in the determination of the issue by any trier of fact whether he came from left or right of the street car. Furthermore, if by any chance the youth was struck just as he passed in front of the car, his coming from the left was rather plainly and proximately a cause of his disaster.

I am especially opposed to the conclusion that the action of the jurors referred to, who "on their own" may have made some examination of the locus in quo, is either basis, or part of a basis, or even excuse, for a new trial. It is not suggested and cannot be guessed properly that what they did or anything they observed was prejudicial to a just result; and that, I submit, should be the sole criterion. Nothing about the corner had been changed when they saw it. Street car tracks, sidewalks, buildings, and other objects were just as they were at the time of the accident. A view of the premises by the jury was permissible. Any observer might have noted something which in a strict sense was prejudicial to either litigant. But, whatever it was, it was but simple truth. Hence we are reversing, in part and as far as the result is put upon the supposed misconduct of the jurors, because of their observation of truth rather than possible untruth.

If it be suggested that they may have drawn false inferences from what they saw, the answer must be that it is the privilege of jurors to draw false inferences just as it is the privilege of judges to draw wrong inferences, either of fact or law; and we are not immune from such error. We must admit that it is no unknown experience to find our consideration of a case here on appeal facilitated by what we happen to know of the facts of a given location. The finality of decision by juries of issues of metropolitan litigation should not be nullified by the fact that some jurors may, and others must, be familiar with locations which necessarily become involved in and are more or less determinative of such issues. It would be less than human for jurors, in passing such locations, not to make some note of what they must see. If that is to be prevented, either they must be peremptorily told by the court to detour the place, if it happens to be on their regular route of travel, or they must be blindfolded if necessarily they must pass that way during the trial.

I agree, as already stated, that in one respect there was error. But I know of no rule which entitles a defeated litigant to a new trial because of mere error. We all know that thousands of new trials have been granted by appellate courts upon that ground, but I had supposed the practice was getting rather out of date. It was due to what long ago Dean Pound characterized as the "sporting theory of justice" arising from chronic exaggeration of the "common law contentious procedure." Pound, The Causes of Popular Dissatisfaction with theAdministration of Justice, 40 Am. L.Rev. 729, 738. It was there well said that "the idea that procedure must of necessity be wholly contentious disfigures our judicial administration at every point. * * * It creates vested rights in errors of procedure, of the benefit whereof parties are not to be deprived." I submit that here, if the real substance of the whole record be examined rather than a few of its mere trimmings, a new trial cannot be granted without what Dean Wigniore has characterized "magnification of details" and "over-emphasis on errors," this latter bad habit being one which is properly put by the author at the "doors of the appellate courts." 1 Wigmore, Ev. (2 ed.) 130. It is useless for us to declare generally our recognition of the broad discretion of a trial judge in the conduct of a trial and at the same time to hold that it is "an abuse of discretion not to agree with the supreme court." Id. 122.

Whether the jury's decision of fact issues was correct is none of our affair as long as there is evidence to support it, and there is an abundance of such evidence. The Point is that there has been one fair and carefully conducted trial, each litigant having the aid of capable counsel who made the most of his evidence. In such circumstances there is no constitutional or other right to a second trial, and I think none should be granted.