evidence which tended to show that the prior and subsequent coupling of the car was done by means of other levers, and that the lever on the car in question was not used. Assuming that there was evidence to justify the jury in concluding that the coupler was out of repair, it was also necessary to show that the defendant had knowledge, actual or constructive, of such condition. The inspection was made at Minneapolis a few hours before the accident. Nothing had happened in the meantime to cause the battered condition of the drawbar. If that defect, as described by Sprague, existed at the time of the accident, it justifies the inference that it existed when the inspection was made, and that it ought to have been discovered and remedied. At least, there was evidence which required the question of the negligence of the defendant to be submitted to the jury.

3. The most serious question in the case is that of the alleged contributory negligence of the respondent. The appellant contends, and cites many authorities to sustain the contention, that Sprague was guilty of negligence in stepping upon the track in front of the moving car, in violation of a rule of the company which forbade employees to go between cars for the purpose of making couplings. Without reference to the fact that the rule in question was made and promulgated prior to the time of the adoption of automatic couplers, and by its terms was intended to apply to different conditions, we are of opinion that, under the evidence tending to show a custom to disregard the rule, it was not contributory negligence, as a matter of law, on the part of the respondent, to go upon the track in front of the train for the purpose of examining the coupling apparatus. All these questions were very fully considered in Turrittin v. Chicago, St. P., M. & O. Ry. Co., supra, and anything which might now be said would be mere repetition. The appellant attempts, unsuccessfully we think, to distinguish this case from the Turrittin case. The difference between the experience of the men is not sufficient to be material. If the claim that there is no evidence in the present case to show a custom to disregard the rule was correct, a very different case would be presented; but there is evidence that the rule was customarily disregarded under circumstances from which notice to the company might be inferred. This evidence was sufficient to carry the question to the jury and to sustain its conclusion. The trial court, therefore, properly refused to order judgment in favor of the defendant notwithstanding the verdict.

4. The accident occurred on June 14, 1906, and the witness Anderson was permitted to testify as to the condition of the roadbed at the place of the accident on November 1, thereafter. The competency of this evidence depended upon whether it had been sufficiently shown that the conditions were then the same as on June 14. The witness was a sectionman, and, with the exception of two weeks, had worked on the track during all the time in question. He had been over the track, at the place where the accident occurred, every day. During the two weeks when he was not at work he was in Minneapolis for two days, and the rest of the time he lived at a boarding house about thirty or forty rods from the Gladstone station, and within sight of the place of the accident. During that time he was occasionally about the yards, and testified that he saw no work done there during the two weeks, except the clearing up of a wreck about thirty feet east of the switch. He observed no evidence of fresh work within ten or twelve feet east of the switch. The respondent claimed that the place where he stepped in the hole was nine or ten feet east of the switch. Anderson testified that he believed that there had been no change in the roadbed, and was then allowed to describe the conditions as they existed on November 1. The sufficiency of the foundation necessary to make evidence competent is for the trial court, and its conclusion will be interfered with only when its discretion has been abused. Cleveland v. Rowe, 99 Minn. 444, 109 N. W. 817; Meyers v. McAllister, 94 Minn. 510, 103 N. W. 564, and cases there cited; 4 Wigmore, Ev. § 2550, and note 6. 5. The application for a new trial on the ground of newly-discovered evidence was also addressed to the sound discretion of the trial court, and, within the rule stated in Bunker v. United Order of Foresters, 97 Minn. 361, 107 N. W. 392, we find nothing in this record which leads us to believe that the trial court abused its discretion. The evidence related to the condition of the coupler on the car in question. It was largely cumulative in character, and it was for the trial court to de termine whether a sufficient excuse had been shown for the failure to produce the evidence at the trial.

The verdict, even as reduced by the trial court, is large; but, in view of the nature of the injuries, we cannot say that it is excessive, or the result of passion and prejudice on the part of the jury. A cursory examination of the cases will disclose many instances in which verdicts of similar amounts have been approved by appellate courts.

We do not find it necessary to discuss in detail the other questions raised by the numerous assignments of error. They have all been carefully considered, and none are of sufficient importance to justify a reversal.

The order of the trial court is therefore affirmed.

1

STATE ex rel. HECTOR BRAY v. WILLIAM HOOLIHAN.1

A warrant of commitment is sufficient, if it clearly designates the offense of which the prisoner is accused, and shows that, upon examination before the committing justice, it had appeared that such offense had been committed, and that there was probable cause to believe the accused to be guilty thereof.

Upon the petition of Hector Bray showing that he was imprisoned in the county jail of Itasca county by the sheriff of that county, as stated in the opinion, a writ of habeas corpus was issued from the district court of that county. The sheriff made return thereto, as described in the opinion, and after a hearing before the court commissioner of the county the latter ordered the immediate discharge of the prisoner. From this order the sheriff appealed. Reversed.

Alfred L. Thwing, for appellant.

PER CURIAM.

Appeal from an order of the district court of the county of Itasca in habeas corpus proceedings, made by the court commissioner of the

county, discharging the relator from the custody of the respondent, as sheriff.

The petition for the writ alleged that the relator was unlawfully restrained of his liberty by the sheriff by virtue of an alleged void commitment issued by a justice of the peace. The commitment recited, in substance, that the relator had been brought before the justice issuing it, charged on the oath of Martin Knapp with having, on January 17, 1908, in said county, committed the offense of grand larceny; that in the progress of the trial on the charge, it appearing to the justice that the relator had been guilty of the offense of committed at the time and place aforesaid, of which offense the justice had not final jurisdiction, that, after examination had in due form of law, touching the charge and offense last aforesaid, the justice did adjudge that the offense had been committed, and that there was probable cause to believe the relator to be guilty thereof; that he had not offered sufficient bail-and commanding the sheriff to convey the prisoner to the common jail of the county, and as keeper thereof to detain him there until thence discharged according to law.

The sheriff made return to the writ of habeas corpus, admitting the detention, and in justification thereof he set out in full the proceedings in justice court, including the complaint, the warrant and return thereon, and the justice's docket entries, also an amended commitment, bearing the same date as the original, issued and delivered by the justice to the sheriff, after the commencement of the habeas corpus proceedings, but before he made his return. He further made return that he then detained the relator by virtue of such proceedings and the original and amended commitment. The amended commitment was regular in all respects. The return of the sheriff was not traversed and stands admitted.

A warrant of commitment is sufficient if it clearly designates the offense of which the prisoner is accused, and shows that, upon examination before the committing justice, it had appeared that such offense had been committed, and that there was probable cause to believe the accused to be guilty thereof. Collins v. Brackett, 34 Minn. 339, 25 Ν. W. 708. If the surplus word "of," between the words "offense" and "committed," were omitted in the original commitment, there could not be, under the rule stated, any possible question of its sufficiency. That the word "of," as used in the original commitment, is harmless surplusage, is obvious; for the "last aforesaid offense," which the commitment recites that the justice found had been committed, and that there was probable cause to believe that the relator committed, necessarily refers to the crime of grand larceny "committed at the time and place aforesaid"; that is, "on the 17th day of January, 1908, in said county." We hold the original commitment valid.

Even if it were otherwise, the court commissioner erred, in view of the admitted facts set forth in the sheriff's return, in absolutely discharging the relator. R. L. 1905, § 4588; State v. Miesen, 98 Minn. 19, 106 N. W. 1134, 108 N. W. 513. Order reversed.