of passengers for hire the law requires the utmost human care and foresight, and holds the carrier responsible for the slightest negligence; and proof of any injury to a passenger from the breaking and giving away or improper working of the vehicle, or any other machinery or appliances employed in carrying the passenger, makes a prima facie case of negligence on the part of the carrier. In such case the law raises the presumption of negligence, and imposes upon the carrier, if he would relieve himself from liability, the burden of proving that the injury was not caused by any want of care and foresight on his part. Cooley on Torts, 552; Stokes v. Saltonstall, 13 Peters, 181; McLean v. Burbank, 11 Minn. 277, and cases cited; McMahon v. Davidson, 12 Minn. 357; Fay v. Davidson, 13 Minn. 523.

We have examined the evidence carefully, and do not find any that tends in any way to show that the accident was caused by anything than the want of care on the part of defendant. In the absence of such exonerating evidence proof that the injury was caused by the sleeper running off the track, entitled plaintiff to recover, unless there was negligence on his part contributing to bring about the injury. The evidence given by plaintiff tending to prove that the sleeper was thrown off by a misplaced switch did not add to his case. His right to recover would have been the same had the evidence been wholly omitted. So the telegrams introduced by him, whether competent or not, could not have affected the result. It has been repeatedly held by this court that a new trial will not be ordered on account of the admission of improper evidence, when we can see that it could not have affected the result. It is, therefore, unnecessary to determine the competency of those telegrams as evidence.

That the negligence of a plaintiff seeking to recover for such an injury contributed to the injury is matter of defence. It is for the defendant to prove such contributory negligence. The plaintiff is not required, when making out his case, to give evidence upon that point. If in proving his case he does show such negligence that is ground for dismissing his action or for directing a verdict for defendant. When, upon the plaintiff resting his case, the defendant asked the court to direct a verdict for the defendant, the request seems to have been made on the ground of want of negligence in defendant, and not of contributory negligence on the part of plaintiff. But if it had been made on the latter ground the court could not have granted it without determining that plaintiff's account

of how he came out of the car was false; for if he were thrown out by the motion of the cars, as he testifies, there was nothing more on his part which could be charged as want of ordinary care. Now, although his account might be open to criticism as to its probability, it certainly was not impossible that it should be true.

If it were to be discredited on the ground that it was improbable, it was for the jury to do that and not for the court. The request was properly refused. The evidence as to plaintiff's family seems not to have been objected to, although defendant had an opportunity to make the objection, until after it was admitted, when the defendant asked the court to strike it out as immaterial. The rule in such case is that the trial court may strike out the improper evidence or retain it in its discretion. State v. Johnson, 23 Minn. 569.

The evidence was so little likely to seriously influence the verdict that it cannot be said there was an absence of discretion in retaining it. There is no principle upon which the telegrams offered by defendant were admissible. They were the declarations of its agents, in no way connected with those introduced by defendant.

The questions of law arising on the issue of contributory negligence on the part of plaintiff are presented upon the exceptions to the instructions of the court to the jury, and its refusal to instruct as requested by defendant. These instructions and refusals were pertinent only because of evidence introduced by defendant that when the accident happened plaintiff rushed out and jumped from the platform of the car. În reference to this the court, upon plaintiff's request, instructed that "where one is placed, by the negligent acts of another, in such a position that he is compelled to choose, upon the instant and in the face of apparent great impending peril, between two hazards, and he makes such a choice as a person of ordinary prudence, placed in the same situation, might make, and injury results therefrom, the fact that if he had chosen the other hazard he would have escaped injury does not prove contributory negligence."

The objection made to this instruction is that it in effect lays down the rule that if it were possible that a man of ordinary prudence, in the same circumstances, would jump off the car, as defendant claimed was done by plaintiff, then it was not negligence on his part to do so. If that is the proper understanding of the court's meaning it was error, because it was certainly possible for a man of ordinary pru

dence, in plaintiff's situation, to do a very imprudent act. But we do not think the court used the word "might," or were so understood by the jury, in the sense of mere possibility, but that the word was used, as it frequently is, to express likelihood or probability. This is evident from the court's general charge covering the same point, as follows: "Persons in the situation of plaintiff are not required to exercise the utmost care; they are not required to have the utmost coolness and presence of mind; they are only required to exercise such care in their conduct as would be exercised by persons of ordinary prudence placed in the same circumstances, and under a like necessity of immediate action and decision;" and also from an instruction at the request of the defendant that if the jury believed "from the evidence in this case that a man of reasonable care and prudence would not have jumped from this car under the circumstances detailed in the evidence, and that the injuries of which plaintiff complains would not have resulted had not the plaintiff, by his own act, jumped or thrown himself from the car," then they must return a verdict for the defendant. It is hardly possible to suppose that the jury understood the court, in giving the instruction requested by plaintiff, as intending to state a rule differing from that which it had of its own motion, in so clear, definite and concise terms, laid down upon the same matter, and had repeated at the request of defendant.

The fourth request of defendant asked the court to lay down the rule that there was no excuse for plaintiff jumping from the car unless the motion of the car clearly indicated to persons of ordinary prudence and understanding that the car was then off the track. This requested instruction was wrong. One reason of several why it was incorrect was that it asked the court, instead of the jury, to determine what circumstances would lead a person of ordinary prudence to do as it was claimed plaintiff did.

Defendant's eighth and eleventh requests made, in effect, the proposition that if plaintiff could with reasonable endeavors have remained in his seat, and if he had so remained he would not have been injured, then he cannot recover. This would make the propriety of a passenger jumping from the car depend on the result alone; not upon his exercising ordinary prudence in choosing which of two perils to abide, but upon his foreseeing the event of either peril. The requests were incorrect.

The meaning of defendant's third request is somewhat

ambiguous, and the court might have refused to give the instruction for that reason. As we understand it, however, and as the jury might have understood it had it been given, it would put upon a passenger the duty of determining correctly the actual existence and extent of the danger.

The modification which the court made does not leave the instruction as clear as might be wished, but made it in effect an instruction that to excuse jumping from a car going at great speed there must be such circumstances or conditions of peril as would induce such fear and tremor in persons of ordinary prudence and firmness as to lead them to such action. This does not differ from the rule laid down in the general charge.

It is well settled, with reference to the liability of common carriers of passengers, that if, through the negligence of the carrier, a passenger is placed in a situation of great peril, the attempt of the passenger to escape the danger, even by doing an act also dangerous, and from which injury results, is not necessarily an act of contributory negligence, such as will prevent him recovering for the injury sustained. If it were, passengers would be required to suppress the instinct of selfpreservation, and sit passive, to receive whatever might befall them, instead of acting as nature impels every man to act.

The test of contributory negligence, where the passenger is required, in endeavoring to escape the peril in which the negligence of the carrier has placed him, is, was the attempt an unreasonable, precipitate or rash act, or was it an act which a person of ordinary prudence might do? This is not determined by the result of the attempt to escape, nor by the result that would have followed had the attempt not been made. To permit that to determine it would be in effect to require of the passenger to judge with absolute certainty the extent to which the danger would go if he made no move, and with like certainty the consequences of the attempt to escape.

In the case at bar no degree of prudence, and it is doubtful if any degree of skill and experience in operating railroads, would enable one to determine with certainty that he would not be injured if he remained in the car, nor that he would be injured if he left it. The passenger in a such a case must of necessity judge of the danger in remaining where he is, as also of the danger in attempting to escape, by the circumstances as they then appear to him, and not by the result. He acts upon the probabilities as they then appear to him, and if he acts as a man of ordinary prudence would in such case v3—22 (no. iii)

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act, he will choose the hazard that from these circumstances appears to him to be the least. If plaintiff did so act (supposing him to have jumped from the car as claimed by defendant) then the attempt to escape was not contributory negligence. Stokes v. Saltonstall, 13 Pet. 181; Buell v. N. C. R. Co. 31 N. Y. 314; Trombley v. C. P. N. & E. R. Co. 61 N. Y. 158. That he was injured in his attempt to escape, and that those who remained in the car were unhurt, might of course be considered by the jury in determining the ques

tion.

The rule of damages laid down by the court was correct. There is nothing in the evidence on which to base defendant's tenth request.

Order affirmed.

WILSON, VAN SANN & Co., Appellants, vs. N. HENTGES and another, Respondents.

The grant of a license to sell a patented article, if the patent is void, does not furnish a valid consideration for a promissory note given for the purchase price of the license. If, however, the patent be valid, though it may not be a profitable one, the grant of a license to sell it is a valid consideration for the agreement to pay the purchase price of the license.

That the patent is useless is no defense to an action to recover the price agreed to be paid for the grant of a license to sell the article, unless it is useless in the sense that will avoid the patent. If the article patented be capable of use for the purpose intended, and such purpose is a useful and not a mischievous or noxious one, although it may not accomplish such purpose as well as other articles intended for the same purpose, the patent is not void for want of utility.

On an issue that a patent for a weighing scale was void because it was useless, the only evidence was that of a witness who had seen three of the scales, and who, being asked to "describe the character of those scales, whether you could weigh anything with them," answered, "You could weigh with them, but you couldn't correct them with a Fairbanks scale;" and who, being further asked, "Would they weigh correctly?" answered "No, sir." There being nothing to show how far they varied from absolute correctness, or whether the defect lay in the principle of the invention, or in faulty construction, or arrangement or condition of the particular scales he saw, held, that the evidence is insufficient to show the invention so devoid of utility as to avoid the patent.

Appeal from order of district court, county of Houston, denying plaintiff's motion for a new trial.

Smalley & O'Brien, for appellants.

Harries & Lomen, for respondents.

GILFILLAN, C. J. Action on two promissory notes executed by defendants to the "Cedar Falls Scale Company," or order, and indorsed, after maturity, to plaintiffs.