Olwell v. Milwaukee Street Railway Co.

Winslow, J. Three questions are raised by the appellant: 1. The record of a coroner’s inquest, which was held on the body of the child three days after the accident, was [334] offered in evidence by the defendant, and excluded by the-court. This ruling is claimed to have been erroneous. Upon what principle it can be claimed that this record can affect in any way the rights of private parties, who were not parties to the proceeding, is not quite-clear, although it-must be admitted that there are authorities to that effect. U. S. L. Ins. Co. v. Vocke, 129 Ill. 557, and cases there cited. "We find it unnecessary to decide the question here, however. If admissible at all, it must appear affirmatively that it would have had some bearing on the controversy, in order to justify reversal of the judgment on account of its rejection. Error must be affirmatively shown. There is no suggestion of its contents preserved in the bill of exceptions, nor is there any offer or statement as to what fact was found by it which would have any bearing on the present controversy. It may be that the inquest resulted simply in a finding that the child came to its death by being run over by the car. If such was the fact, its rejection could not be erroneous, because that fact was admitted. Under these circumstances it cannot be said that error is shown. 2. In charging the jury the trial judge defined ordinary care as “ such care as the great majority of men would use under like or similar circumstances.” This expression is criticised as inaccurate, and it is said that ordinary care is “such caution and prudence as the great majority of mankind observe in their own business a/nd coneerns, or, rather, such care as a person of ordinary prudence would exercise in the same relation and under similar circumstances and conditions.” This seems like carrying criticism to extreme ■lengths, especially in view of the fact that no instruction on the subject was requested by the appellant. The definition given by the court is substantially in accord with the decisions of this court. Dreher v. Fitchburg, 22 Wis. 675; Duthie v. Washburn, 87 Wis. 231. 3. It is claimed that the jury could not be sent back to [335] perfect their verdict after their separation. It seems that the jury thought that, after answering the first and second questions in the affirmative, it became unnecessary for them to answer the third, fourth, and fifth questions, and so they sealed their verdict and separated. It is not claimed that their action was dishonest or that there was any ulterior purpose in it, nor is it claimed that any of the jury were subject to any improper influence during their separation, nor is it shown that there was any chance or opportunity for such influence to be exercised. Under these circumstances, we think it was competent for the court, in its discretion, to send them out to perfect their verdict. High v. Johnson, 28 Wis. 72; Douglass v. Tousey, 2 Wend. 352; Warner v. N. Y. C. R. Co. 52 N. Y. 437; Maclin v. Bloom, 54 Miss. 365; Loudy v. Clarke, 45 Minn. 477; Consolidated Coal Co. v. M'aehl, 130 Ill. 551. If it were shown in such a case that there had been any improper conduct on the part of any of the jury during their separation, or should facts be shown which would raise a well-founded suspicion thereof, it would doubtless be the duty of the court to set aside the verdict and grant a new trial; but, as before remarked, no-such showing is made in the present case. By the Court. — Judgment affirmed.