Action by J. E. Wells against the City of Lisbon. From a judgment for plaintiff and an order denying a motion for judgment non obstante or for a new trial, defendant appeals. Affirmed.

Ego, for respondent.

SPALDING, J. The defendant, the city of Lisbon, is a municipal corporation. The plaintiff on the 2d day of January, 1907, was the owner of a dray and a pair of mules, and one Laren was employed as the driver thereof in the business of draying. The city of Lisbon was engaged on that day in laying water mains on certain streets, particularly near the south side of Sixth street where it crosses Elm street; Sixth street running east and west, and Elm street north and south. A ditch had been excavated along Sixth street for the purpose named, about eight feet deep, and it extended from both the east and west into Elm street, leaving a space from 14 to 18 feet wide in the center of Elm street unexcavated. The evening of January 2d was very stormy, and the wind blew with considerable force, drifting the snow. Workmen had been engaged for some time on this excavation, and on that evening ceased work about 5:30 o'clock, when a plank was placed across the intact portion of Elm street, one end resting upon a pile of dirt and the other upon some cans, about 30 inches above the surface of the roadbed, and a lighted lantern was suspended from the center of the plank. Testimony was submitted showing that other lights were placed in different localities in the vicinity of the excavations; but there is no evidence that at the time of the accident any light was visible except the one in the center of Elm street. Testimony was also received that 30 minutes after the lights are claimed to have been placed there were no lights or barricades on either of the ditches. Other witnesses testified that they saw several lights shortly after the time a workman testified to placing them. About 6:15 or 6:30 that evening Laren drove toward this spot with plaintiff's mules and dray. He testifies that he saw the one light in the center of the street when about 40 feet from it; that the mules were walking; that he could see no pile of dirt ahead; that he pulled the mules up and turned to the left between the end of the ditch and the curb, on the assump tion that the ditch or obstruction was where the light was placed; and that, as far as he could see, there was an unobstructed passage to the side of the light. The snow was drifted so as to conceal the pile of dirt which had been thrown from the excavation, and his mules floundered as they reached the drift and fell into the ditch and received injuries which resulted in their death. This

plained of was caused solely by the negligence and want of ordinary care on the part of Laren, the driver, and that the ditch was guarded by lights to warn teamsters and other persons using said streets of the exist

ence of the obstacles; that Laren was aware

of such warning signals and, notwithstanding the same, and without making any examination of the highway on which he was driving, started to drive around said lights and barricade, and in so doing, in the dark and in the storm, drove into the snow bank in which his mules floundered, causing them to fall into the ditch, whereby they were injured as alleged. The jury returned a verdict in favor of the plaintiff, assessing his damages at $450, upon which judgment was duly entered. The case is here on appeal from the judgment and from an order denying appellant's motion for judgment non obstante or for a new trial. The errors assigned relate to the orders denying defendant'smotion for a directed verdict at the close of plaintiff's case in chief, its motion for a directed verdict at the close of the whole case, to the admission of certain evidence, and tocertain instructions of the court. We shall consider them separately.

1. In prosecuting works of the nature described in this complaint, a municipal corporation is bound to do so with due regard to the rights of travelers on the street in the vicinity of the excavation, and it must use such precautions as are reasonably necessary for the protection of such travelers. The degree of care required of the municipality is ordinary care, and what constitutes “ordinary care" depends upon the circumstances of the particular case. Elliott, Roads & Streets, § 472, and authorities cited. The degree of care requisite may depend largely upon the atmospheric and other conditions; greater care being required to constitute ordinary care in a snowy, dark, or stormy night, than in a clear, moonlight night. In the case at bar there is no evidence that more than one lantern was present in the vicinity of the excavation at the time of the accident, and this within an hour after the workmen ceased their labors and! placed the light or lights. The testimony as to the placing of other lights is indefinite asto where they were located, or how they were protected, or to what extent they warn-ed travelers. If, as a fact, several lightswere placed, the failure in less than an hour of all but one was evidence from which the jury might conclude that they were inadequate or improperly placed to serve the pur

El

2. Was Laren, the driver, negligent? Like the question of negligence on the part of the municipality, the care required on his part is, in general, such as persons of common and reasonable prudence ordinarily exercise under like circumstances, and must be proportionate to the increased danger from darkness and other atmospheric conditions. liott, Roads & Streets, §§ 635-637; Ouverson v. City of Grafton, 5 N. D. 281, 65 N. W. 676; Gagnier v. City of Fargo, 12 N. D. 219, 96 N. W. 841; 15 Am. & Eng. Ency. of Law, 472. There is a conflict in the evidence as to the driver knowing that the ditch was ahead. We think, under the circumstances of this case, the question of the driver's negligence was a question for the jury; at least there is sufficient evidence of care on his part to sustain the verdict. The jury was in a better position to judge of the care required of an ordinarily prudent person, under the conditions existing on that night in that place, than the court can be. Whether such a person would, under the circumstances, have turned to one side on discovering the light and noting its location, on the assumption, as did the driver, that the light marked the obstruction, is not sufficiently clear so the minds of reasonable and fair men would be likely to reach the same conclusion. Pyke v. Jamestown, 15 N. D. 157, and authorities cited. Defendant relies upon Smith v. City of Jackson, 106 Mich. 136, 63 N. W. 982, as his strongest authority, and says that it is directly in point, except that in that case the team was slowly trotting instead of walking. We do not so read it. On the contrary, we read it as tending to support respondent's case. In that case the driver saw the light four or five rods distant, and his horse continued at a trot until he reached the vicinity of the light, when he turned to the right to shun the light, and his horse fell into the trench. He did not turn far enough nor soon enough, and the light was located on the obstruction. He took no precaution except to avoid driving over the light.

point. In that case a sewer trench made in the street was left unprotected and without lights except at the head of the trench, a distance of 70 feet. Plaintiff fell into the trench and was injured, and the court held that the question of contributory negligence was properly submitted to the jury, and that it was gross negligence for the city to allow a sewer excavation to remain unprotected and without lights except at the head of the excavation. In the case at bar the one light found was at the head of the two excavations and not on either of them. In Wood v. Burgess and Town Council, 143 Pa. 167, 22 Atl. 752, the plaintiff testified that the light was on the right-hand side of the road. He attempted to drive by on the left side of the road. Defendant's witnesses claimed that the lights were equally distributed across the street. There was evidence that the occupants of the carriage were warned by a person on the street that they could not cross, and it was held that the questions of negligence and contributory negligence were for the jury, and that, as to the driver stopping and looking and finding out what was meant by the lights, the test was whether he acted as a man of ordinary care and prudence would have acted under similar circumstances. Authorities might be multiplied sustaining our conclusions, which are that, as to the motions, unless evidence was improperly received, to which we refer later, the court did not err in denying them.

3. The second class of assignments relates to the admission of evidence regarding some of Laren's reasons for supposing the ditch where the light appeared. In brief, this testimony was to the effect that he had seen other ditches on public work in that city protected by lights placed on planks in front of the excavations and the center of the street left open for travel. Even if the admission of this testimony constituted error, we are not clear that it was prejudicial; but we think it was admissible to aid in determining the degree of care exercised by the driver. It was limited to this purpose, when offered. The jury was entitled to know the conditions existing and what prompted him to pursue the course which he did pursue. The fact that the city, on other jobs of this kind, had pursued a custom of placing warnings in a certain manner, had some bearing on what he might expect in the instant case. Its weight as evidence might be slight, but its value was for the jury to determine. 8 Ency. of Evidence, 952.

4. Other assignments relate to certain instructions given to the jury. The first error relates to an instruction regarding the placing of the lights; the objection being that it ignored the question of their proper loca

1 Reported in full in the New York Supplement; reported as a memorandum decision without opin

pose, and that lanterns would be proper lights while a tallow candle would not be. We see no objection to his having compared lanterns with a tallow candle, though no candle was in evidence either at the excavation or in the record. Appellant's suggestion that the statement that a candle would not have been a proper light was erroneous, in view of the fact that under some circumstances it might have been, is without merit and can have had no influence on the jury. Other assignments relating to instructions are on similar lines, extremely fine spun, and without merit.

5. It is urged that the notice of claim filed with the city auditor does not comply with section 2704, Rev. Codes 1905. Appellant ⚫ contends that under the terms of sections

2703 and 2704 two papers should have been filed, each verified by the claimant, one the claim for which the action is brought, with an abstract of the facts out of which the cause of action arises, and the other a separate abstract of the facts. The notice filed contained the claim and statements required, in one document duly verified. We deem it a matter of indifference whether the whole information required to be given the city council is contained in one paper or two, so it complies with the requirements of the statute in substance and serves the purpose intended.

The orders and judgment of the district court are affirmed. All concur.

(Syllabus by the Court.)

1. MASTER AND SERVANT (§ 286*)-INJURIES TO SERVANT-ACTION-NEGLIGENCE-QUESTION FOR JURY.

Defendant's passenger station is located at the western edge of the village of Bartlett. There are no buildings or crossings west of the station in the vicinity of said village, but a passing track extends at a distance of a few feet north of the main track 2,000 feet west of the station. Defendant's railroad had been blockaded for two days during which no trains had passed Bartlett station. At 8 o'clock in the morning the plaintiff, with others, was sent to do some work at a point 1,600 feet west of the station. On starting, he was told by the night

Held that, under the circumstances, the court could not say as a matter of law it was negligence on the part of the engineer not to blow the whistle after passing the station, but that the question of negligence was for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1010-1050; Dec. Dig. § 286.*]

2. MASTER AND SERVANT (§ 289*) — ASSUMP

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TION OF RISK-RAILROAD TRACKMEN. While, as a general rule, track or section men assume the risks from dangers incident to their occupation and must protect themselves at the time occupied with duties requiring their from approaching trains, especially where not whole attention, there are exceptions to this rule, and among such exceptions are cases in which circumstances and conditions are extraordinary or exceptional, in which case the question of contributory negligence may be for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089-1132; Dec. Dig. § 289.*] 3. MASTER AND SERVANT (§ 289*)-INJURIES TO SERVANT-ACTION-CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY.

Held that, under the circumstances of this case, the court could not say that in law the plaintiff was guilty of contributory negligence in not watching for trains while walking on the track a distance of 1,400 feet west from the station at the village of Bartlett, and that it was for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089-1132; Dec. Dig. $289.*]

4. MASTER AND SERVANT (§ 274*)-INJURIES TO SERVANT-ACTION-CONTRIBUTORY NEGLIGENCE-ADMISSIBILITY OF EVIDence.

In determining whether the plaintiff was guilty of contributory negligence, the jury had a right to take into consideration information which he had received from the night operator and the position of the block signal, as well as other surrounding circumstances.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 274.*]

5. MASTER AND SERVANT (§ 236*)-INJURIES TO SERVANT-NEGLIGENCE.

The question for the jury in this case was whether an ordinarily prudent person would have been justified in not expecting a train to pass during the time plaintiff was occupied in walking from the station to the place where he was overtaken and injured.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 723-742; Dec. Dig. § 236.*]

6. MASTER AND SERVANT (§ 131*)-RAILROADS -DUTY TO GIVE SIGNALS-EFFECT OF STAT

UTE.

The fact that the Legislature has required the sounding of a whistle or ringing of a bell at certain places does not relieve the railroad

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 131.*]

7. EVIDENCE (§ 151*)-MASTER AND SERVANT (§ 270*)-ADMISSIBILITY OF EVIDENCE. Certain minor questions regarding the admission of evidence passed upon. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 440; Dec. Dig. § 151;* Master and Servant, Cent. Dig. § 925; Dec. Dig. § 270.*]

(Additional Syllabus by Editorial Staff.) 8. NEGLIGENCE (§ 4*)-ORDINARY CARE.

In determining what constitutes ordinary care under any circumstances, the jury may take into consideration all the surrounding circumstances and conditions, the age, intelligence, and experience of the person whose acts are in question, and the information possessed by him upon which he based his act or failure to act. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 6; Dec. Dig. § 4.*]

Action by J. B. Davy against the Great Northern Railway Company. From a judgment for plaintiff, and an order denying judgment, notwithstanding the verdict and a new trial, defendant appeals. Reversed, and new trial granted.

The plaintiff brought this action against the defendant railroad company to recover for injuries received by being struck by a snowplow operated by defendant. The appeal is from an order denying judgment notwithstanding the verdict and a new trial, and from the judgment entered on the verdict in favor of the plaintiff.

In brief the case may be stated as follows: About 8 o'clock on the morning of January 25, 1907, plaintiff, who was in the employ of the defendant as section hand at Bartlett station, in company with three other section hands, was sent by the foreman from the station at Bartlett to shovel snow into an engine standing on the passing track about 1,600 feet west of the station. A blizzard had been raging two days prior to the accident, and the line of the defendant was blockaded and trains were tied up. At this station, about 8 feet north of the main track, is a passing track extending for a distance of 2,000 feet east and a like distance west of the station house. Passenger train No. 6 had been stalled on the passing track for more than 24 hours. It was east bound with two engines, and the first engine was about 50 feet west of the depot door and the train extended westerly 500 or 600 feet. There was a little breeze from the northwest, and the temperature was about 30 degrees below Plaintiff and his companions were dressed in fur-lined coats, the collars turned up, and their caps were drawn down over the ears. Plaintiff testifies that, before he left the station, he was told by the night operator that no trains were coming, and, when

zero.

on the latter. When they had proceeded about 1,400 feet west from the station, one of plaintiff's companions happened to turn his head to the rear and saw the snowplow close upon them, and warned his companions to jump. All succeeded in clearing the snowplow except the plaintiff, who was hit and injured. No question is made as to the amount of the verdict; it being conceded that, if he is entitled to recover at all, the judgment of $2,000 is not excessive. The engineer had been directed to open up the line for trains following and for those which might be stalled ahead of him. The bell was clogged with snow, and could not be rung, and the engineer was advised at different stations, including Lakota, four miles east of Bartlett, that the track was clear. It is shown that in opening a snow blockade, it is necessary to maintain a speed of about 25 miles per hour to do effective work, and, inasmuch as the snow is generally deeper around station buildings and in yards than in the open country, high speed must be maintained while passing stations to avoid getting stalled. The station whistle was given for Bartlett. About 250 or 300 feet east of the depot is a crossing. The evidence is in conflict as to whether the whistle was blown for that crossing, but the jury found that it was not. It is the custom of the road for the engineer to give a certain whistle as a signal when approaching or passing a side-tracked train if followed by a second train or section. All the trainmen and the assistant superintendent of the road, who was on the snowplow train, testified that this signal was given to the stalled train at Bartlett. One witness for plaintiff who was in the station at Bartlett at the time the snowplow passed testified that he did not hear such signal, and the plaintiff and his companions testified that they heard no signal, and that they could hear the whistle half a mile. The jury also found in answer to a