
    W. C. Stodgel, Appellee, v. M. M. Elder, Appellant.
    APPEAL AND ERROR: Harmless Error — Instructions. Where 1 plaintiff claimed tliat he was entering a garage with an oil can and funnel in his hand and was negligently run down by defendant, it was harmless to defendant for the court, in stating the duty of the plaintiff to use reasonable care, to instruct that if, in entering the garage with the ean and funnel, he did not use reasonable care, and thereby contributed to his injury, he could not recover. No error ean be predicated on the inclusion of the terms "with the ean and funnel”, even though there was a controversy as to what plaintiff was doing when he was hurt.
    TRIAL: Instructions — Curing Error — Withdrawal of Instruction. 2 The withdrawal of an erroneous instruction, at any time before the jury returns a verdict, cures the error, save, possibly, in very exceptional cases. Applied where the court, feeling that it had erroneously instructed as to the doctrine of "last clear chance”, withdrew the instruction, and substituted a concededly correct one.
    NEW TRIAL: Newly Discovered Evidence — Competency and Effect. 3 A new trial will not be granted because of the discovery of new evidence when such evidence (a) is incompetent and privileged' on the objection of the prevailing party and (b) bears not on the right to recover, but on the amount of recovery.
    
      PRINCIPLE APPLIED: Plaintiff was given a verdict for damages for personal injuries. Defendant later discovered that, shortly after plaintiff received his alleged injury, he called upon a physician, and that the physician examined him (plaintiff) and did not find any "objective symptoms of an injury to his breast”. Reid, new trial rightly denied.
    
      Appeal from, Sioux District Court. — Hon. William. Hutchinson, Judge.
    Saturday, November 27, 1915.
    Action at law to recover damages for personal injury. There was a verdict and judgment for plaintiff, and defendant appeals.
    Affirmed.
    
      Harding & Kahler and P. D. Van Oosterhout, for appellant.
    
      Gerrit Klay and T. E. Diamond, for appellee.
   Weaver, J.

The ease stated by plaintiff’s petition is to the following effect: That, on the day in question, he lawfully entered, upon a matter of business, a building in Council Bluffs which was being used by one Madsen as an automobile garage, and while there and without negligence on his part, defendant drove an automobile into said building from the street and negligently drove against and upon the plaintiff to his serious injury. In specifying the alleged negligence, plaintiff says that defendant drove the car recklessly and without care for the safety of those lawfully in the building and without giving or sounding any alarm and without having or using proper brakes or other appliances by which to control the car. The defendant denies the petition and says that plaintiff’s injury, if any, was the result of his own negligence. There was a verdict for plaintiff for $500 and judgment entered thereon.

According to plaintiff’s story, he had been driving a car and stopped in front of the garage to get a supply of gasoline. Having filled his tank, he started into the garage with the can and funnel which he had been using, and had gone but a few feet when defendant, driving up from behind, struck and injured him. There was evidence, also, from which the jury could find the defendant negligent and that plaintiff was not himself at fault. There was dispute between the witnesses upon some of the details, but the truth of such matters was for the jury.

I. The court, in stating the duty of the plaintiff to use reasonable care for his own protection, said to the jury that if, in entering the garage with the gasoline can and funnel, he did not exercise the care of a reasonably prudent man, and thereby contributed to his injury, he was not entitled to recover. The mention by the court of the can and funnel is objected to as prejudicial error, because the fact as to whether plaintiff was so engaged at the time of the accident was in dispute. The exception seems to be trivial. The essence of the instruction was that, if plaintiff, by any negligence on his part, contributed to his own injury, he was not entitled to damages. Whether he was carrying a can or a walking stick or was empty handed is wholly immaterial. It is impossible to conceive of any prejudice to the appellant from this incident.

II. In its original charge to the jury, the court instructed, among other things, that if, in driving into the garage, defendant saw plaintiff in a place of danger, from which it was evident that he could not escape in time to avoid injury, then it was defendant’s duty ‘ ‘ to use every means at his command and all the . appliances upon his car to stop it and avoid a collision. After the jury had been deliberating some time upon a verdict, the court announced to counsel that it proposed to modify its charge. The jury was therefore recalled, and informed by the court that Paragraph 9 of the charge (being the paragraph above referred to) was withdrawn, and another was then given in its stead. The modified instruction was to the effect that, if defendant saw plaintiff in a place of danger and after so discovering him could, by ordinary care, have stopped his car and avoided the injury, it was his duty to do so. Error is assigned upon the giving of the instruction in. its original form.

The exception cannot be sustained. The withdrawing of the original charge and the giving of the correct rule could only serve to emphasize the latter in the minds of the jurors, to the advantage of the defendant. It is certainly the general rule that an erroneous instruction may be withdrawn at any time before a verdict is reached, and the error be' thus cured. 38 Cyc. 1787. There may be exceptional occasions where the error is of such grave character that, upon its discovery by the court, a mistrial should be declared because of the uncertainty whether the withdrawal of the instruction and the substitution of a correct one in its place would serve to remove the prejudice; but we are thoroughly persuaded that this is not an instruction of that exceptional character. The question was a simple one, and the statement of the correct rule was made in clear terms which the jury'could not fail to understand, and the record discloses nothing in the trial to particularly arouse passion or prejudice in the minds of the jurors or lead them to disregard their duty to give heed to the court’s directions.

III. Plaintiff moved for a new trial, assigning, among other grounds, the discovery of new evidence to the effect that, very soon after his alleged injury, plaintiff called upon a physician, who carefully exam- .... . med mm and found no objective symptoms of an injury to plaintiff’s breast”. The motion was overruled, and error is assigned thereon.

This testimony, at most, goes not to the plaintiff’s right of action, but to the amount of his damages, if any. Moreover, the evidence is of matters learned by the witness in his professional and confidential capacity, and would be excluded upon plaintiff’s objection. Still again, the showing of diligence is not of very persuasive character. There was no error in the ruling.

There is nothing shown which can justify us in disturbing the judgment of the trial court, and it is — Affirmed.

Deemer, C. J., Evans and Preston, JJ., concur.  