VANN, J.-The defendant, as a carrier of passengers, operates a line of elevated railway extending from Harlem, to South Ferry, in the city of New York. The east Facts. platform of the South Ferry station is built on a curve, and each car, as it stops there, touches the curve at a tangent, so that the middle part is within one or two inches of the platform, while the ends are about fourteen inches therefrom. The result of this is an open space, between the steps of the car and the platform of the station, several feet long and fourteen inches wide. On the 25th of January, 1885, the plaintiff was a passenger upon a train of the defendant which reached South Ferry at about half-past 6 in the evening. Accompanied by three friends, she left the car, and attempted to reach the platform of the station. She was not familiar with the locality, having never landed there before, and the space between the steps of the car and said platform was open and unguarded. Nothing was put across the hole for passengers to step on as they alighted, and no warning or assistance was given by the persons in charge of the train. If the passengers saw the hole, they could step across it, but unless they saw it there was nothing to prevent them from stepping into it. As the jury is presumed to have found, upon sufficient evidence, there was but a single light from one end of the station to the other, and that was at a point quite remote from the open space in question. While some light came through the car windows, it did not reach the hole, which was in the shadow of the end and lower part of the cars. The plaintiff was the third in the little procession of four as it approached this spot. Her brother, who was in advance, stepped off first, and just reached the edge of the platform of the station with the tip of his right foot, and was forced to make a quick step with his left foot in order to save himself from falling into the open space. As he turned to give warning to the others, he was pushed forward by his younger sister Rhoda, who closely followed him, and whose dress covered the hole so that it could not be seen. When the plaintiff, who was just behind her sister, attempted to cross, she stepped into the open space, fell through the hole, and was severely injured. There was evidence tending to show that it was so dark that the hole could not be seen.

It is not essential to inquire why the railroad was constructed with so sharp a curve at the place where the accident occurred, nor whether the defendant is responsible for the way that the South Ferry station was built. By stopping its trains at the point in question, it invited the passengers to alight, and was thereby charged with the duty of using due care to pro

NegligenceQuestion for jury.

vide proper and safe means of getting from the platform of the cars to the platform of the station. Even if the open space was necessary, owing to the peculiarities of the location, it was not necessary to leave it unguarded or unlighted. Some precaution, adapted to the situation could have been used, such as throwing a plank across, or stationing a trainman to warn and assist passengers in alighting. At least, the unguarded hole could have been well lighted, so as to be easily seen, and the passengers thus enabled to avoid the danger. We think that the evidence required the submission of the case to the jury for them to determine whether, under all the circumstances the defendant was guilty of negligence that caused the injuries sustained by the plaintiff. Smith v. New York & H. R. Co., 19 N. Y. 127; Hulbert v. New York C. R. Co. 40 N. Y. 145; Sexton v. Zett, 44 N_Y. 430; Weston v. New York E. R. Co., 73 N. Y. 595; Hoffman v. New York C. & H. R. R. Co. 75 N. Y. 605; Dobiecki v. Sharp, 88 N. Y. 203, 8 Am. & Eng. R. Cas. 485. The statement of facts already made is a sufficient answer to the claim of the defendant that the plaintiff was guilty of contributory negligence, as matter of law, and that no question in that regard was presented for the consideration of the jury. In the cases cited in support of this position the person injured knew, or should have known, of the danger to be encountered, and hence was required to give general evidence that he exercised proper care; but in this case the plaintiff was ignorant of any circumstance requiring the use of special care, and hence was relieved of the necessity of showing that she used special care. While the actual situation was dangerous, the apparent situation was free from danger. With her limited knowledge of the facts, what should she have done that she did not do? Ordinarily, what everbody does is all that anybody need do. Unconscious of danger, she did what the other passengers did. If she had known of the hole, or if it had been light enough for her to see it by the exercise of ordinary care, a different question would have been presented. Under the circumstances which she had the right to assume existed, she was under no obligation, as matter of law, to look before she put her foot down; but it was a question of fact for the jury to decide, not only whether she should have been more vigilant, but also whether, if she had looked, she could have seen the hole in the surrounding darkness. Johnson v. Hudson River R. Co., 20 N. Y. 65; Ernst v. Hudson River R. Co., 35 N. Y. 9; Morrison v. New York Cent. R. Co., 63 N. Y. 643; Taber v. Delaware L. & W. R. Co., 71 N. Y. 489; Hart v. Hudson River Bridge Co., 80 N. Y. 622. The circumstances did not require that freedom from contributory neg

A. & E. R. Cas.-8

ligence should be shown by direct testimony, but they permitted the inference to be drawn from the general tendency of all the evidence in favor of the plaintiff. Id. As no other question has been presented for consideration, we think that the judgment should be affirmed. All concur.

WATSON

v.

ST. PAUL CITY RY. Co.

(Minnesota Supreme Court, November 18, 1889.)

Struck Jury-Peremptory Challenges. Under the statute in relation to struck juries, no peremptory challenges are allowed to any of the jurors composing the panel as finally made up.

Street Railway Company-Duty as Common Carrier of Passengers.—An instruction to the jury that a street railway company, as respects precautions for the safety of passengers, is bound to exercise the greatest care and foresight in the construction and operation of a cable line, held to state the correct rule.

Evidence-Impeaching Credibility of Witness-Competency of Evidence.Contradictory extrajudicial statements cannot be introduced in evidence for the purpose of impeachment until the foundation is laid by the proper preliminary inquiries of the witness whose credibility is questioned

New Trial-Improper Remarks of Counsel-Discretion of Court.-Whether improper remarks in the presence of the jury are such as are calculated to prejudice the case, is to be determined, ordinarily, by the trial court; and an order granting or refusing a new trial for such cause will not be disturbed on appeal, except in case of clear abuse of discretion.

APPEAL from Circuit Court, Ramsey County.

Action by George H. Watson to recover damages for personal injuries sustained by plaintiff whilst a passenger on one of defendant's cars. The railroad upon which the plaintiff was travelling is operated by cable, and the negligence charged consisted in employing unskilled servants and in failing to provide proper machinery and appliances whereby the train on which plaintiff was travelling became unman ageable whilst descending a steep hill and ran down it with great speed, and the car in which plaintiff was travelling was thrown from the track. The jury returned a verdict for the plaintiff, and a motion by the defendant for a new trial was refused. The defendant appeals.

H. J. Horn for appellant.

C. D. & T. D. O'Brien for respondent.

VANDERBURGH, J.-I. A struck jury was summoned in this

Peremptory!

case, and upon the trial, the requisite number not appearing, the sheriff was ordered to summon a sufficient number of talesmen to complete the panel. The Struck jury— court refused to allow any peremptory challenges challenges. to any of the jurors on the ground that such challenges are not allowed or contemplated by the statute providing for such juries. We think the court ruled correctly. The provision for striking takes the place of the right to peremptory challenges. 1 Thomp. Trials, § 43; Blanchard v. Brown, I Wall. Jr. (U. S.), 309; Branch v. Dawson, 36 Minn. 194. Our statute (Gen. St. 1878, chap. 71, § 15) is copied from that of Ohio (Laws 1853), except that in the original act there is no provision for calling in talesmen. It is held there that the panel must be made up of the struck jurors, and if 12 do not appear, or are not brought in, the places of absentees cannot be filled by talesmen, and that there cannot be a struck jury, under the statute, unless made up of the number originally selected. Cleveland, P. & A. R. Co. v. Stanley, 7 Ohio St. 156. But, under the added provision for talesmen in the statute, as adopted by the legislature in our state, talesmen may be summoned if a sufficient number of the struck jurors do not appear; and the jury still retains its distinctive character as a struck jury under the statute, in which it is clear that no provision was made for peremptory challenges, and no such challenges were contemplated. The procedure, in its essential features, resembles that for the selection of jurors in the justice's court. Gen. St. chap. 65, § 58. We see no reason why the court might not, on the application of either party, compel the appearance of struck jurors who absent themselves, so that in practice talesmen may be avoided, or, at least, a disproportionate number of them need not necessarily be called, unless the parties consent. But, if peremptory challenges are to be allowed in such cases, then each party may exercise the full number allowed in civil actions, though there be but a single vacancy to be filled. It is very clear, we think, that such challenges are not admissible in the case of struck juries.

Duty of car.

rier.

2. The modification of defendant's tenth instruction was correct. The proposition of counsel was: "The law does not require that such additional precautions as it is apparent after the accident might have prevented the same should have been previously adopted, but only such as would be dictated by the care and prudence of a cautious and careful person before the accident, and without knowledge that it was about to occur." The modification made was in respect to the degree of care requisite, and as to such precautions the court substituted for the last part

of the request the words "unless they are of such a character as should have been contemplated in the exercise of the greatest care and foresight." The defendant is a carrier of passengers, and, as respects the construction and condition of its track and roadbed, as well as its cars and their management, the extreme rule as stated by the court is applicable generally, as in the case of other carriers. Smith v. St. Paul City R. Co., 32 Minn. 1, 16 Am. & Eng. R. Cas. 310. 3. The offer of testimony to discredit the witness Byrne was properly ruled out. It was proposed to contradict his statements, without first having called his attenImpeaching tion to the time, place, or other material circumstance involved in the supposed contradiction. The proper foundation was not laid, and the court followed the rule as recognized and adopted in this state. Horton v. Chadborn, 31 Minn. 322.

credibility of witness.

4. The remarks of counsel for the plaintiff in respect to the character of the defense and the usual verdicts in this class of cases did not constitute "misconduct," such as to jusMisconduct of tify this court in reversing the decision of the trial counsel. court on the question. It was in the discretion of that court to determine upon its own observation and judg ment the effect of such remarks upon the jury, and whether they were prejudicial to the defendant. Loucks v. Chicago, M. & St. P. R. Co., 31 Minn. 535, 19 Am. & Eng. R. Cas. 305; Com. v. White, 148 Mass. 430. The damages were not excessive, in the opinion of the trial court, and upon that matter we can discover no ground for interfering with its decision.

Order affirmed.

Degree of Care Required of Street Railway Companies as Carriers of Pas sengers. See Citizens' St. R. Co. v. Twiname, (Ind.) 30 Am & Eng. R. Cas. 616; Topeka City R. Co. v. Higg, (Kan.) 34 Id. 529; Dahlberg v. Minneapolis St. R. Co., (Minn.) 18 Id. 202; Smith v. St. Paul City R. Co., (Minn.) 16 Id. 310; Dougherty v. Missouri R. Co., (Mo.) 21 Id. 497; 34 Id. 488.