Page:Federal Reporter, 1st Series, Volume 3.djvu/86

 NTJGBNT V. WANN. 79 �over and over, and it was no part of the plaintiff's case. It ■was part of the defendants' case. If there was any proof of it he must have drawn it ont by cross-examination in some way. I have no doubt but that the plaintiff in this case had a right to go to the jury on the question of contributory neg- ligence, but the judge took it away from them. There was no trial on the merits, and, therefore, no bar to the action. Motion for judgment on the pleadings is overruled. ���NuGENT V. Wann. �[Uvreuit Court, D. Minnesota. , 1880.) �1. NBaLiGKNCE — Excavation in Dbive-Wat — Police Ofpioeb. �MoCeaet, C. J., (charging the jury.) The court instnicts you in this case as follows : The plaintiff sues the defendant to recover damages resulting to him from injuries received by falling into an excavation made by the defendant in a place alleged by the plaintifif to bave been a public alley or drive way over certain premises described in the petition. �defendant denies that said alley or drive way was public ; alleges that it was purely private, and was never used as a public way ; that he was not bound to wam plaintiff of tha danger of passing over it, and that he had a right to make, in the alley, the excavation into which the plaintiff feU, and was not bound to notify plaintifif, or the public, of its pres- ence therein, or of the danger of faUing into the same. �The duty of the defendant with respect to the alley way, at the time of the accident, depends upon the character of the way as to being public or private, and upon the purposes for which it had been used. It appears in evidence that this alley way was laid out under a written contract between the adjoining proprietors, and the court, having considered that contract and construed it, instructs you that it constituted the alley way in question, as originally laid out, and, so far as opened, a private way for the use of the owners of the ����