City of Oshkosh v. Campbell

Maeshall, J. In an action by a city to recover a penalty for violating one of it's ordinances, is it prejudicial error to overrule an objection by defendant to a juror upon the ground of his being an alderman? That is the first question here. Such an occurrence characterized the trial. Whether the juror was incompetent is not the material question. It may be conceded that he was; but does it appear reasonably clear from the whole record that had he not been retained as a juror the result might probably have been more favorable for the defendant? That' is the ultimate test of efficient error. It is far short of being satisfied here. The case was quite trifling, as indicated by the fact that the offense was of such character as, in the judgment of the court, to only warrant a fine of one dollar. Moreover, there was no real dispute about the facts. The matter turned on the validity and construction of the ordinance, questions with which the jurors had nothing to do. On the whole, there seems to be no indication in the record that appellant was prejudiced by the fact that the alderman served on the jury. Did the court err in admitting in evidence and giving effect to the ordinance? The affirmative is claimed because of ch. 516, Laws of 1907 (secs. 1636 — 50, 1636 — 51, Stats.), regulating the use of highways by persons with automobiles. The plaintiff had all the usual powers respecting regulation [569] of the use of streets within its boundaries. It is not claimed that the particular regulation violated any statute unless it be the one referred to or ch. 305, Laws of 1905 (secs. 1636- — ■ 47 to 1636 — 57, Stats.: Supp. 1906). An examination thereof fails to disclose that' they touch the subject covered by the ordinance. It is too well settled that a city may make reasonable police regulations respecting the use of its streets, not contravening the letter or spirit of any statute on the subject, to warrant discussing the subject in this case. The statutes relied on expressly reserve to municipalities the usual powers of regulation not inconsistent therewith, and require automobile drivers to observe the rules of the road. The ordinance in question seems to be in perfect harmony therewith. Objection is made because language was used in the instructions from which the jury, as claimed, might' have gotten the idea that the presence of the obstruction at the corner was no justification for appellant turning to the "left instead of waiting for opportunity to proceed near the right-hand curb according to the terms of the ordinance, though, it is confessed, that the court did not, probably, intend to do so, but rather to leave room for the jury to find that' a person circumstanced as appellant was, may use his judgment as to whether it is possible, within the meaning of the ordinance, to proceed near the curb, and if not, to reach his destination some other way, and, perhaps, by going to the left as appellant did. It is a sufficient answer to counsel’s contention to say that, in our judgment, the ordinance means just what it is suggested the trial court inadvertently and prejudicially gave the jury to understand. The purpose was to compel persons with vehicles to proceed along the street in such order as to minimize the danger of accidents, and that in case of there being obstructions, as in this case, to wait for a clearance. We see nothing unreasonable in that. It must be assumed that the people who stood between the cars and the curb knew appellant had the right of passage superior to their right to stand, unneces [570] sarily, in tlie street, and.tliat, had he signaled to them seasonably, they would have given way for him. The mere fact, without any fault of appellant, that he had to choose between slackening speed or, even, stopping for a moment for a clearance of the way, or violating the ordinance by turning as he did, is no justification for his act. If it were left to every owner of an automobile to violate such a city regulation when otherwise he would experience some inconvenience, there would he very little use of having such an ordinance, and the difficulty, now very great, of guarding against automobiles being a serious menace to the personal safety of people while on the public ways would he intolerable. The foregoing renders some other matters discussed by appellant’s counsel immaterial. • By tlie Court. — The judgment is affirmed.