testify as to whether or not he then deemed himself in such danger. Then the grounds of such thought may be tested to ascertain whether or not he did deem himself in such danger." Citing Roy v. Goings, 96 l. 361; S. C., 36 Am. Rep. 151; Bailey v. Godfrey, 54 Ill. 507; S. C., 5 Am. Rep. 157; Lewis v. D'Arcy, 71 Ill. 648; Furlong v. Cox, 77 id. 293; Davenport v. Ledger, 80 id. 574; Huebner v. Koebke, 42 Wis. 319; Cline v. Libby, 46 id. 123; S. C., 32 Am. Rep. 700; Evans v. Graham, 50 Wis. 450; Huggans v. Fryer, 1 Lans. 276; Smith v. Post, 1 Hun, 516. See also Werner v. Bergman, 28 Kans. 60; S. C., 42 Am. Rep. 152, and note, 158; Gibson v. Cranage, 39 Mich. 49; S. C., 33 Am. Rep. 351.

in consequence of the defendant being already amply supplied with other articles of the same kind? The learned judge did not adopt that course, but withdrew altogether from the jury the evidence as to the previous supply. Now reference has been made to the case of Ryder v. Wombwell, ubi sup., and it has been suggested that this court is bound by the decision in that case as being the decision of a court of co-ordinate jurisdiction, and also as being the last decision on the point. Another observation as to the case of Ryder v. Wombwell, ubi sup.; when that case was taken on appeal to the Exchequer Chamber, the judges who then decided it, carefully as it seems to me, kept open the point arising in the present case. It is therefore open to us to act upon the case of Foster v. Redgrave, ubi sup., and previous to that case there is an unbroken chain of authorities in favor of the decision

we now arrive at."

The

In Baines v. Toy, Q. B. Div., July, 1884, 51 L. T. Rep. (N. S.) 292, an action for necessaries supplied to an infant, it appeared that the infant was already sufficiently supplied, but that fact was not known to the plaintiff. Held, that that fact should have In Commonwealth v. Pomphret, Massachusetts been submitted to the jury. By Field and Lopes, Supreme Court, Oct., 1884, that the furnishing of JJ., Manisty, J., doubting, but not dissenting, fol- spirituous liquors by a club to its members by the lowing Foster v. Redgrave, L. R., 4 Ex. 35, n.; glass is not a "selling" within the statute. Brayshaw v. Eaton, 7 Scott, 183; and not following court said the legislature "has not undertaken to pro Ryder v. Wombwell, L. R., 3 Ex. 90. Lopes, J.,hibit the drinking or buying of intoxicating liquor, said: "If it had not been for what has been said or the distribution of it in severalty among persons by my brother Manisty I should have said that I who own it in common. If therefore two or more take a very strong view of this case, and have expersons unite in buying intoxicating liquor, and pressed the opinion that the learned judge had mis- then distribute it among themselves, they do not directed the jury. I do not propose to go through violate the statute, and the intent with which they the cases that have been cited to show that the do this is immaterial. If they intend in this manner direction was wrong A contract by an infant for to obtain intoxicating liquor to drink, without goods cannot be enforced unless the articles be thereby subjecting any person to the penalties of necessaries, the policy of the law being to protect the statute, they still act with impunity, because the infant. In point of fact a tradesman dealing what they do, is not prohibited by the statute. The with an infant does so at his own peril, and he word 'club' has no very definite meaning. Clubs must lose his money unless he can prove that the are formed for all sorts of purposes, and there is no goods supplied were necessaries for the infant, ac- uniformity in their constitutions and rules. It is cording to his station in life. That being the law, well known that clubs exist which limit the number we come to the question what are necessaries. To of the members and select them with great care, determine this question we must take into account which own considerable property in common, and in what the infant had at the time of the order; for which the furnishing of food and drink to the memexample, a watch may be prima facie a necessary, bers for money, is but one of many conveniences but if the infant were supplied with other watches which the members enjoy. If a club were really then it would cease to be a necessary. It is admit- | formed solely or mainly for the purpose of furnishted in this case that regard must be had to the sup-ing intoxicating liquors to its members, and any ply the infant had at the time of the order if the person could become a member by purchasing tickplaintiffs knew at that time that the infant was ets which would entitle the holder to receive such amply supplied; but it is contended on behalf of intoxicating liquors as he called for, upon a valuation the plaintiffs that this is not so if the plaintiffs did determined by the club, the organization itself not know of the previous supply. If this were so might show that it was the intention to sell intoxthe protection given to the infant would dependicating liquors to any person who offered to buy, entirely on what might be the state of knowledge of the tradesman, which would in effect deprive the infant of the protection intended by the law. I think it is immaterial whether the plaintiffs did or did not know of the supply; it is immaterial even whether they knew or did not know that the defendant was a minor. The learned judge ought to have admitted the evidence, and the question ought to have been left to the jury whether the articles were necessaries, and if so, did they cease to be so

and the sale of what might be called a temporary membership in the club with a sale of the liquors, would not substantially change the character of the transaction. One inquiry always is, whether the organization is bona fide a club with limited membership into which admission cannot be obtained by any person at his pleasure, and in which the property is actually owned in common with the mutual rights and obligations which belong to such common ownership under the constitution and rules of

weary and turns back; the other pushes on and reaches the top. The rising sun illumines the summit, chases the shadows from the valleys, and gradually takes possession of the earth. He sits bathed in a flood of glory never before conceived; never to be forgotten."

words without trimming; Mr. Webster plucked | under their feet. After much effort one becomes away his flowers of speech whose bloom and fragrance pleased him less than when first used. So too Mr. Webster tormented proof-readers and printers who had the misfortune to be engaged in putting his speeches in print; at times changing the words and forms of expression which had been used in deliberately prepared orations. But it is said that Mr. Choate, never at a loss for the word, could express clearly the very things he wished to say, and leave his words to be printed as they fell from his lips. He was so consistent in this habit that Judge Fancher could not induce him to correct the stenographer's report of one of his greatest arguments. The author thinks that "as a consequence, it may be said that he who would know these authors from their printed pages should remember that while one of them appears as in state dress, every part carefully arranged, the other appears in the unstudied dress of every-day life."

Judge Neilson has some prudent suggestions as to classical studies. The subject could not well be avoided, as such studies were part of Mr. Choate's daily life, and modified his character. Then too, as if his devotion was foolish, it had been said that such studies were unprofitable; the lessons learned soon forgotten. In the brief space which he could give Judge Neilson shows the use and value of such studies. He reminds us however that some scholars of great mental powers had suffered from the study of the ancient classics, and points out the distinction that should be observed in respect to students. He would not have them come out of college ignorant of every thing but Latin and Greck, or unduly neglect such studies, or take them up with a slothful or indifferent spirit. He says:

Es

"It is obviously unjust, it is bad economy, to prescribe such tasks for a student without regard to his taste, or to the course of life he is to pursue. Whatever his calling is to be he must study his own language closely, critically, profoundly, and be conversant with the best authors in it. pecially must he study the Bible daily, and cultivate a love for its words and style. He may thus become a good English scholar. He must master many subjects of practical importance also, and in the history, life and contentions of the world be well informed. In all this he will be following Mr. Choate's example. But he who looks forward to a life of literary leisure, and to the highest intellectual enjoyments attainable, or aspires to one of the learned professions, must take up the ancient classics. Such studies however are to be vigorously pursued. In its early stages the work is difficult and full of discouragements. Only after much devotion, after he has passed the region of toil and pain, does the student enter into the spirit of the language, and take delight in the literature. Of that delight he who abandons the study early feels and knows nothing. It is as when two travellers attempt to climb a mountain. In the morning mist they see only the steep and stony path

A lawyer of genius and culture, much given to public speaking, generally has a style of his own; the thoughts and the dress of corresponding wealth and variety. It was pre-eminently so with Rufus Choate. As to the adverse criticism which falls to the lot of such men Judge Neilson declares: "Those who condemn what they cannot emulate deserve little attention." He is however disturbed by the blunders of a friendly biographer. Thus the esteemed author of the "Memoirs" says that "Mr. Choate created a taste for his peculiar style," and the judge answers:

"That taste must have been of sudden growth. His first juries understood him, his early trials, triumphs; and the people, when he appeared before great assemblies a stranger, hung upon his lips with breathless interest." Again when it is said, in substance, that Mr. Choate was conscious that his style was not suitable for an author, we are told: "Mr. Choate could say what he would, in whatever style he would, with ease and certainty. He writes and speaks as one thoughtless of mere style, and there seems to be almost no limit to the variety of tone and expression."

After what we have years ago written of Mr. Choate we need not say that we accept, and sympathize with the views of the author.

It was wise to give, as have been given, some portions of Mr. Choate's writings and speeches. The reader may have a vivid and refreshing sense of the grace, beauty, clearness, simplicity and power of his English.

The sixth chapter will be of great value to students. The question as to the Anglo-Saxon element of the English language received some attention from Sharon Turner and George P. Marsh on a narrow basis, and more at large from Doctor Weiss. In this instance the author took up the question with especial reference to the vocabulary of Rufus Choate, and the number of unrepeated words used by him, as printed, is given. Happily the work was extended. The percentage of words of Anglo-Saxon, Greek and Latin derivation in our language, as used in special efforts by twenty distinguished American and British authors, as well as by Mr. Choate, have been ascertained, and the results put in tabular forms. This work has been faithfully performed, and is more clear and satisfactory than any other work of the kind with which we are acquainted.

The author and the old friends of Mr. Choate, working in concert, have done such full and exact justice to their subject that the critic will find no occasion to add to or to abate from the analysis. The special information given by Edward Ellerton

!

1

Pratt, Mr. Choate's son-in-law, and sprinkled sprinkled through these pages, is of great value and interest. We regard the book as a permanent and valuable contribution to biographical literature.

MUNICIPAL CORPORATIONS-- EXCAVATION IN
STREET-CONTRIBUTORY NEGLIGENCE.

SUPREME COURT OF NEBRASKA, JULY 1, 1884.

CITY OF LINCOLN V. WALKER.*

A person travelling on a public street, if he exercises ordinary care, has a right to be absolutely safe against all accidents arising from obstructions or imperfections in the street. And if a person is authorized to make an excavation in the street, he is bound at his peril to protect the same and leave the street in as safe a condition as it would be if the excavation had not been made.

In an action of negligence, where the plaintiff can prove his case without disclosing any negligence on his part, contributory negligence is a matter of defense, the burden of proving it being on the defendant.

A. C. Ricketts and Mason & Whedon, for plaintiff. Lamb, Billingsley & Lambertson, for defendant. MAXWELL, J. This action was brought by the defendant in error against the city of Lincoln to recover damages alleged to have been sustained by him from falling into an excavation on O street, in front of block 52, whereby he sustained damages to the amount of $3,000. The answer is that said plaintiff well knew of said excavation; that it was well protected by guards placed over and across the sidewalks where they approached said excavation; that the street lamp of the St. Charles Hotel lighted up the same, and would have enabled the most casual observer to see the nature and extent of the excavation; that the injury was occasioned wholly by the plaintiff's negligence, etc. The jury returned a verdict in favor of the plaintiff below for the sum of $1,200. The city filed a motion for a new trial, in which are 41 assignments of error. The motion was overruled and judgment rendered on the verdict, but taxing the costs to each party.

to

The errors relied upon are to the giving and refusing certain instructions. The testimony tends to show that at the time the accident occurred a large brick building was being constructed on the northeast corner of block 52, fronting on Eighth and O streets; that an excavation of the same depth as the cellar extended into O street from twelve fifteen feet, and from fifty to sixty-five feet in length; that this excavation was walled up a little above the surface of the ground, being about four inches above at the north-east corner, and nineteen at the north-west; that as this excavation extended across the sidewalk, a temporary fence was erected across the sidewalk on the east and west sides by nailing up two six or eight inch boards at each of said places; that a similar fence was constructed on the north side of the posts, consisting of two by four scantling five feet in length, driven into the ground about eighteen inches, and two six or eight inch boards nailed on to these posts. There were two openings left for carrying material into the building, one being near the north east corner, and the other near the north-west corner.

It is claimed that these openings were closed at night, but this is denied. The distance this fence was from the excavation is not cer. *S. C., 20 N. W. Rep. 113.

tain; some of the witnesses saying it was close to the wall of the excavation, while others state it was three feet away. A temporary sidewalk from three to four feet in width, was constructed around this excavation, laid on two by four inch scantling, and the fenceposts were nailed to the south side of the temporary walk. The St. Charles Hotel was immediately west of the excavation in question, and the fence around it commenced on the east side at the hotel. There was a dim light in front of the hotel, apparently at the outer edge of the sidewalk, showing the name of the hotel. O street is one of the public streets of Lincoln; the Union Pacific depot being located at the foot of the street, and there being a very large number of persons passing and repassing along said street. That on the twenty-fourth of November, 1881, the plaintiff below, being a stranger in Lincoln, left the Oriental Hotel in said city about 7 o'clock in the evening, to go to the Union Pacific depot. On inquiring the way, he was directed to go north to O street, thence west along said street to the depot. The night seems to have been very dark; and the plaintiff not knowing of the obstruction in question, while a short distance east of the same, two men passed on to the sidewalk about forty feet in front of him, going in the same direction that he was, and supposing them to be more familiar with the street than he was, he followed them, being guided by their voices. As the two persous named came in front of the St. Charles Hotel, he observed that they passed between the light in front of the hotel; and that building being considerably to his left, and he believing that he was too far into the street, stepped to the left, and fell into the excavation in question, a depth of seven feet three inches, and sustained serious injuries, by which he was rendered incapable of performing any labor for a number of months. The verdict is not too large if the city is liable.

The attorneys for the city asked the following instruction, which was refused: "The jury is instructed that before the plaintiff can recover in this action, it is incumbent upon him to show that no negligence of his contributed to the injury, damages for which are claimed herein, and that upon the plaintiff rests the burden of proof of the absence of such contributory negligence." There is no uniform rule established in regard to the party upon whom rests the burden of proof of contributory negligence. In some of the States it is held that where the plaintiff can prove his case without showing contributory negligence, the burden is on the defendant. In others that the plaintiff's case is not presumed, and he must disprove contributory negligence. In some of the cases it is held that there is no presumption as to care or the want of it and that if the facts show a duty of care, the plaintiff must give some evidence that he exercised it; otherwise not. The question is presented to this court for the first time.

In Randall v. N. W. Tel. Co., 54 Wis. 147; S. C., 41 Am. Rep. 17, it was held that contributory negligence was purely matter of defense, citing Railroad Co. v. Hunter, 11 Wis. 160; Hoyt v. Hudson, 41 id. 105; 22 Am. Rep. 714; Prideaux v. Mineral Point, 43 Wis. 524; S. C., 28 Am. Rep. 558; Bessex v. Railroad Co., 45 Wis. 477. And this seems to be the rule of the United States courts. Railroad Co. v. Gladmone, 15 Wall. 401; Railroad Co. v. Horst, 93 U. S. 291. See also Kelley v. C. & N. W. R. Co., 19 N. W. Rep. 521.

The New York rule seems to be that if the evidence shows the plaintiff's presence or conduct, or that of his servant or agent, to have been involved in the disaster, or its causes, then he must disprove contributory negligence. Abb. Tr. Ev. 596. See the New York cases cited in 18 Alb. L. J. 144,164, 184. And this rule is recognized in Massachusetts. Parker v. Lowell, 11

fact therefore was on the defendant. The court did APPEAL from an order of the District Court, Hen