the defendant's motion for judgment notwithstanding the verdict or for a new trial.

There is no serious controversy about the facts. August Eckert was engaged by the Lamb Lumber Company in unloading lumber from a freight car which was standing upon the appellant's delivery track in St. Paul. While Eckert was at work inside the car, a switching crew switched in cars onto the track on which stood the car in which Eckert was working with such force as to throw it from the track and cause the lumber to slide against his leg. The negligence charged is the omission of the railway company to notify Eckert that the cars were going to be switched in onto the track and against the car in which he was working. There is no reason for disturbing the verdict in this case. The ordinary way of transferring the cars to the delivery track was to allow them to be carried down the track by gravity, in charge of a switchman acting as a brakeman, whose duty it was to set the hand brakes and bring the cars to a stop at the proper point on the delivery track. In this instance, after the cars had started, the brakeman proceeded to set the brakes in the ordinary way. In doing this he placed a short club between the spokes of the brakewheel, and thus secured a leverage which enabled him to set the brake tighter than he otherwise could have done. After thus tightening the brake he attempted to secure it by kicking a dog into a notch in a ratchet wheel which was designed for the purpose. He failed to secure the dog safely in the ratchet, and it slipped out. The wheel, thus released, revolved rapidly and jerked the club out of his hand. Being thus left without means of properly controlling the cars, the speed increased beyond that contemplated, and they were thrown violently against the car in which Eckert was working.

Under the circumstances the question of the negligence of the railway company was clearly for the jury. Foss v. Chicago, M. & St. P. Ry. Co., 33 Minn. 392, 23 N. W. 553; Jacobson v. St. Paul & D. R. Co., 41 Minn. 206, 42 N. W. 932. As said in Chicago v. Goebel, 119 Ill. 524, 10 N. E. 372: "When a railroad company puts loaded cars upon a side track, for the purpose of being unloaded by the owners of the freight, and such owners, their agents or servants, with the express or implied consent of the company, proceed to remove the freight, the company in such case, has no right, without special notice and warning, to run or back a train in upon the side track while the cars are being unloaded. And while in such case those engaged in the work of unloading are not permitted to close their eyes or ears to what comes within the range of these senses, yet they may give their undivided attention to their work, and are justified in assuming that the company will not molest them, or render their position hazardous, without such notice or warning. That such is the law is well settled by authority." To the same effect, see Gessley v. Missouri, 32 Mo. App. 413; International v. Hall (Tex. Civ. App.) 25 S. W. 52.

2. In the course of the examination of Dr. Lewis, the defendant offered in evidence a report which the witness had previously made to the claim agent of the company, and the exclusion of this instrument is assigned as error. It is not claimed that the report could have been properly received as original evidence. On the cross-examination of the witness the plaintiff's counsel asked him if he had not reported to the claim agent that the plaintiff's leg had been shortened as a result of the injury. The witness had testified that there was no shortening of the leg, and in reply to this question on cross-examination stated that he had not made a report in which he stated that it had been shortened. No further reference was made to the matter until the defendant offered the report in evidence for the purpose of showing, as stated, "that it did not contain the statement which plaintiff's counsel had unjustifiably assumed and insinuated before the jury that it did contain." The trial court said: "I think you may introduce so much as relates to the shortening of the leg. Mr. Countryman: Well, there isn't a word that there is any shortening of the leg; but there is a full report as to the nature of the injury and the prognosis. (Objection sustained.)" What the report does contain is this: "Will any permanent injury or deformity result? If so, what? No." Upon this condition of the record we find no prejudicial error.

The only other question raised and discussed in the briefs is as to the amount of damages. There was evidence tending to show that the plaintiff's left leg was broken and his ankle dislocated. His leg was in a cast for six weeks. For eight weeks he walked on two crutches, and for some time thereafter he used one crutch and a cane. Four months after the accident he could not bear his full weight on his left leg, and he still suffers much pain. One of the doctors testified that as a result of the fracture the leg was about three-quarters of an inch shorter than the other, and that it would probably be four or five months after the trial before the ankle joint would be fully restored. Plaintiff was otherwise badly bruised and painfully injured. He was twenty years old, and at the time of the accident was earning $1.75 a day. In view of this evidence, and the approval of the verdict by the trial court, we cannot say that it was so excessive as to show that it was the result of passion or prejudice. Order affirmed.

SIBLEY COUNTY BANK V. CATHERINE SCHAUS.1

June 12, 1908.

Nos. 15,698-(105).

Verdict Sustained by Evidence.

Evidence examined, and held sufficient to sustain the verdict of the jury.

Action in the district court for Sibley county to recover $152.56 upon a promissory note. The case was tried before Morrison, J., and a jury which returned a verdict in favor of defendant. From an order denying its motion for judgment notwithstanding the verdict or for a new trial, plaintiff appealed. Affirmed.

Francis Cadwell, for appellant.

W. H. Leeman, for respondent.

BROWN, J.

Defendants Catherine and Joseph Schaus, mother and son, made and delivered their certain promissory note to one H. P. Schaefer, who in the regular course of business, for value, and before the maturity thereof, indorsed, transferred, and delivered the same to plaintiff, a banking corporation, which thereafter brought this action to recover thereon. Defendant Catherine interposed in defense that her signature to the note was procured by fraud and fraudulent representations, and a verdict was rendered in her favor. The action was dismissed as to defendant Joseph; it appearing on the trial that at the time he gave the note he was a minor. Plaintiff appealed from an order denying its alternative motion for judgment notwithstanding the verdict or for a new trial.

The sole question presented on this appeal is whether the evidence is sufficient, under section 2747, R. L. 1905, to sustain the defense of fraud alleged in defendant's answer and to negative negligence on the part of defendant Catherine in signing the note without investigating and knowing its contents. Certain exceptions to the refusal of the court to charge the jury in accordance with special requests involve the sufficiency of the evidence to sustain the defense; it being the contention of plaintiff that there was a total failure either to show fraud in procuring the signature of defendant or to negative negligence on her part in signing the note.

A careful consideration of the record leads to the conclusion that the verdict, having been approved by the trial court, should not be disturbed. Though the evidence does not make out a strong case of fraud, it is sufficient within the rule controlling the court in such cases. The same may be said on the question of negligence of the defendant Catherine in signing the note without knowledge of its contents. A review of the evidence would serve no useful purpose as a precedent, and we content ourselves with the statement that the record has been carefully examined and the argument of counsel for appellant fully considered with the result stated. O'Gara, King & Co. v. Hansing, 88 Minn. 401, 93 N. W. 307, and Johnson County Sav. Bank v. Hall, 102 Minn. 414, 113 N. W. 1011, are not in point. In those cases there was a total lack of evidence to relieve defendant from the charge of negligence, and we held, construing the statute cited, which provides that the question of negligence in cases of this kind shall be one of fact for the jury, that to bring the statute into operation there must be evidence sufficient to raise an issue on that question. Such evidence appears in this case and was sufficient to take the case to the jury. Order affirmed.

ANDREW NELSON v. J. B. JOHNSON.1

June 12, 1908.

Nos. 15,731-(196).

Liability of Public Lodging House Keeper.

The defendant held out his house, of which he was the keeper, as a hotel in which furnished rooms were to let for a single night or longer time. In the regular course of business he let, without special contract, at stipulated prices, rooms therein for a single night or a longer time, as was desired, to all who applied in a fit condition to be received. He kept an office therein, which was in charge of clerks and open at all hours for the reception of guests, in which a register was kept for the guests to inscribe therein their names and addresses. There were not maintained at or in connection with the house any facilities for supplying guests with food, and none was furnished to them by the defendant. Held, that the house was a public hotel, and that the defendant, as keeper thereof, was liable to the plaintiff, a traveler who was a guest therein, for money stolen in the nighttime from him, while he was in his room, without the negligence of either party.

Action in the municipal court of Minneapolis to recover $96, of which sum $95 was alleged to have been stolen from plaintiff while lodging in defendant's hotel. The case was tried before Waite, J., who made findings, and ordered judgment in favor of plaintiff. From the judgment entered pursuant to the order, defendant appealed. Affirmed.

Velikanje & Alcott, for appellant.

Thomas Kneeland, for respondent.

START, C. J.

The facts in this case, as found by the trial judge, are substantially these: The defendant, on and prior to November 16, 1907, was the keeper of a house for the entertainment of travelers and transient lodgers known as the "Bridge Square Hotel," in the city of Minneapolis. There was publicly displayed upon the front of the building the name "Bridge Square Hotel," and a sign advertising to the public