then and there in proper condition and manner. It contends, however, that this invitation may be withdrawn and that it is withdrawn when the car is started or when the signal to start is given. It further contends that the evidence shows without contradiction that neither the motorman nor the conductor saw the plaintiff. The jury were instructed by the court below in accordance with the concessions of the defendant, and were further instructed: "When a car stops on the street to receive passengers, it invites persons to enter the car and become passengers. Until that invitation is recalled, any person actually taking hold of the car and beginning to enter it is a passenger, and entitled to the protection of the principle that I have stated. It is true that the invitation may be recalled before the car starts. There may be circumstances under which the principle itself would require the recalling of the invitation. There may be such a pressure to enter the car that a load which it would be unsafe to move is accumulating, and it would be the duty of those in charge of the car to see that no more passengers should be received. The conductor does recall the invitation when he gives the signal for the car to move on, and he should not do that until he has reason to believe that all who have applied have reached the car in such a way that it is safe for the car to move. Nothing else appearing, no reason being shown why the conductor cannot know whether any person is attempting to board the car, it can be said that it is his duty to know. I cannot say that there are no circumstances that would, as a matter of law, justify him in starting, though, as a matter of fact, some one was at the time attempting to board the car. If he had stopped the car in a dark night, and all the passengers known by him to be seeking to enter had entered, and he took pains to examine on the outside to see if any others were seeking to enter, and, using all the means at his disposal to learn, he learned of none, he would be entirely justified in giving the signal to start, though it might happen that in the darkness of the night some one was seeking to enter. So I do not state to you, as a matter of law, that he must on all occasions and on every occasion know that no one is seeking to enter when he gives the signal to start; but when nothing is shown, more than the fact that the car had stopped to receive passengers, and that persons were seeking to enter, it is his duty to know whether any are entering at the time he gives the signal for starting. Now, unless there was some negligence on the part of the defendant — and I mean by negligence of the defendant, negligence of any of its agents who are engaged in the management of the car unless it is proved to your satisfaction that there was some negligence on their part,

there can be no recovery by this plaintiff." We think these instructions were sufficiently favorable to the defendant, and that no exception lies to the refusal to give the instructions requested. The accident happened shortly before noon in July. We cannot consider the case on the supposition that the testimony of the conductor and the motorman was to be taken as true. These were witnesses for the defendant, and it was for the jury to say what weight was to be given to their testimony. Moreover, the jury took a view of the car, and may have found that the testimony of the conductor was not true. The case differs essentially from Pitcher v. Railway Co., 154 Pa. St. 560, 26 Atl. Rep. 559, and Id., 174 Pa. St. 402, 34 Atl. Rep. 567 (1). In that case a boy, without signaling, attempted to board a horse car which had stopped to let off a passenger. He had one hand on the rail of the front platform, behind the driver, and, when about to place his foot upon the step, was thrown down by the sudden starting of the car. He was not seen by either the conductor or the driver. Under these circumstances, it was held that he was not a passenger. In the present case the jury might well have found that a signal was given to the motorman; that he stopped the car in obedience thereto; and that while the plaintiff was partly on the car the conductor gave the signal to start, without looking to see whether the plaintiff was wholly on the car or not. There can be no doubt that on the evidence for the plaintiff she was entitled to go to the jury on the issues whether she was a passenger, whether she was in the exercise of due care, and whether the defendant was guilty of negligence. Gordon v. Railway Co., 175 Mass. 181, 55 N. E. Rep. 990 (7 Am. Neg. Rep. 367 n), and cases cited.

2. As to the second request, the court instructed the jury as follows: "I should say a word upon the effect of the motorman's starting the car without having received a signal from the conductor. I do not say to you, as matter of law, that that would be negligence, but the starting of the car by the motorman without having received the signal from the conductor is to be treated just as if he had had the signal; that is, if it would have been negligence on the part of the conductor to have given the signal and to have had the car started at that moment, then it was negligence on the part of the motorman to start it at that moment. In other words, the corporation was negligent if that car was started when passengers were in the act of entering the car, and were in such a position that they were injured by its starting, whether its starting at the 402, is reported in 6 AM. NEG. CAS. 368, 372.

1. Pitcher v. People's Street R'y Co., 154 Pa. St. 560, and 174 Pa. St.

moment was due to the improper action of the conductor in giving the signal or to the improper action of the motorman in starting without it." We are of opinion that the charge upon this point was also sufficiently favorable to the defendant, on the evidence in the case. We have already mentioned the evidence in considering the first point, and it is not necessary to repeat it.

3. The third request is not argued, and it, in fact, was given. Exceptions overruled.

TAYLOR v. CITY OF MANKATO.

Supreme Court, Minnesota, October, 1900.

- CONTRIBU

PEDESTRIAN FALLING INTO OPENING ON SIDEWALK TORY NEGLIGENCE. — One who, while traveling along a public thoroughfare in the suburbs of a city, on a dark night, with knowledge of a defect in the sidewalk, leaves the road, and takes the walk, and is injured by falling into the opening which he is trying to avoid, is not, as a matter of law, guilty of contributory negligence.

(Syllabus by the Court.)

APPEAL from District Court, Blue Earth County.

Action by Solomon B. Taylor against the City of Mankato. From an order denying defendant's motion for a new trial, after verdict for plaintiff, it appeals. Order affirmed.

C. O. DAILEY, for appellant.

W. E. YOUNG, for respondent.

LEWIS, J. The plaintiff, a man sixty-three years of age, was walking along one of the main traveled thoroughfares entering the city of Mankato, on a dark night, at about eight o'clock in the evening. of April 1, 1899. At a given point beyond the Blue Earth river, in West Mankato, a plank sidewalk commenced upon one side of the street, and continued towards the main part of the city. The sidewalk consisted of pine planks, about six feet long, laid across stringers, and, for more than a month prior to the date mentioned, had been in a defective condition, which defect was caused by the removal of one of the planks, leaving a hole about six feet long, seven inches wide, and ten inches deep. The street upon which plaintiff had been traveling was a well-graded roadway, but upon this occasion was wet and sloppy. There was no sidewalk on the opposite side of the street, and no regular or even place for foot passengers. The plaintiff had known for a month at least of the defect in the sidewalk. On the night in question he had walked

along the highway, from the country, a distance of about four miles, on his way to his home, a few blocks further on towards the city, and, coming to the sidewalk, he left the road, and took the walk, stepped into the hole, and was injured. This action was brought to recover damages for such injury, and the trial resulted in a verdict for plaintiff. From an order denying its motion for a new trial, defendant appeals.

The assignments of error present only one question for review, viz.: Was the plaintiff guilty of contributory negligence? It has been often held in this court, beginning with the case of Erd v. City of St. Paul, 22 Minn. 443, and ending with Lyons v. City of Red Wing, 76 Minn. 20, 78 N. W. Rep. 868, that previous knowledge that a public way is out of repair does not conclusively establish negligence on the part of a person attempting to traverse it; that the true test is, what would a man of ordinary prudence do under the circumstances? Appellant insists that, under the circumstances of this case, the plaintiff was bound to avoid the sidewalk entirely, and keep to the road, until he had passed the point of danger; that, having elected to leave a perfectly level way for a walk which he knew contained a hole into which he might step on account of the darkness, the plaintiff did that which the ordinary man, in the exercise of reasonable care and caution, would not do. The case mainly relied on in support of this contention is Wright v. City of St. Cloud, 54 Minn. 94, 54 N. W. Rep. 819.

The facts in that case are essentially different, and counsel has probably given undue weight to certain generalizing language in the opinion. There, the accident occurred in the daytime, and the plaintiff could and did see the dangerous condition of the path, made slippery and uneven by the melting and tramping of snow, which had not been removed for a long time. Such treacherous path continued over a considerable space, while the opposite side of the street was cleared from snow and easily accessible by crossing over. Under such conditions it was properly held that the plaintiff was not in the exercise of reasonable care in attempting to walk along the uneven path. But in the case before us there was no path or sidewalk on the opposite side. The roadway was wet and sloppy, and was a frequently traveled thoroughfare. It was a dark night. The opening consisted of a space seven inches wide, over which one might easily step. The plaintiff, knowing that the plank was out, was mindful of the fact, was looking for the hole, thought he had passed it, and, after two or three steps more, stepped into it. The test to be applied is, what would a person of ordinary prudence have done under the circumstances? Would he have kept to the road in

the wet, with a chance of meeting teams, or have taken the walk, and tried to avoid the hole? We think it was a question for the jury to determine.

Order affirmed.

LANDO v. CHICAGO, ST. PAUL, MINNEAPOLIS AND OMAHA RAILWAY COMPANY.

Supreme Court, Minnesota, October, 1900.

COLLISION BETWEEN TEAM AND ENGINE - CONTRIBUTORY NEGLIGENCE. — 1. The trial court is not required to submit the question of defendant's wilful negligence to a jury, when, in a suit for personal injuries, the evidence goes no further than to indicate want of ordinary care on the part of defendant's servants. Under such circumstances, it would be error to do so.

2. Evidence in this case considered, and held that plaintiff's intestate contributed to his injury by his own want of ordinary care, and that there was no evidence of an intention to injure him, or wilfully disregard his rights in the premises.

3. The trial court did not abuse its discretion in refusing to dismiss this case during the trial, on plaintiff's request, at the close of his case, and the verdict for defendant was properly directed.

(Syllabus by the Court.)

APPEAL from District Court, Ramsey County.

Action by Adolph Lando, administrator of Andrew Fisher, against the Chicago, St. Paul, Minneapolis & Omaha Railway Company. From an order refusing plaintiff's motion to dismiss, and from an order directing a general verdict for defendant, plaintiff appeals. Order affirmed.

S. C. OLMSTEAD, for appellant.

PIERCE BUTLER, for respondent.

LOVELY, J. In this action plaintiff seeks to recover for the death of his intestate, Andrew Fisher, occasioned by injuries sustained at the St. Paul yard of defendant through the alieged negligence of its servants in the operation of a switch engine. At the conclusion of the evidence counsel for plaintiff requested permission to dismiss the action, which was refused by the trial court. Upon motion of defendant's counsel, the court then directed a verdict in defendant's favor. These two orders are properly here for review upon the whole evidence, and present the only questions for our serious consideration.