Page:Federal Reporter, 1st Series, Volume 3.djvu/89

 J83 FEDERAL REPORTER. �tive, you will inquire and determine whether the plaintiff, without knowledge or notice of the excavation, was passing along the alley way on lawful business, and fell into the same and was injured. �3. If the first and second questions are decided in the affirmative, it will then be neeessary for you to consider the question of contributory negligence on the part of the plain- tiff. Although you may find' that the defendant was guiity of negligence, under the instructions I have'given you, yet the plaintiff cannot recover by reason of the defendant 's negligence alone, if he (plaintiff) was also guiity of negli- gence, which caused or contributed to the injury. The plain- tiff was bound to use such care as a man of ordinary pru- dence would use under ail the circumstances. You are to ■determine, from the evidence, whether there was a want of «are on the part of plaintiff, within the meaning of the law ■&a thus defined, and you will take into consideration, in de- termining this question, ail the circumstances, including the fact that the plaintiff was a peace officer, and had a right, at any hour of the night, to pursue a criminal through the alley, as well as the fact that the night was dark, and that he failed to take a light with him, and the fact that be had a light when he entered the alley, which went out, and which he did not relight. If the plaintiff failed to use ordinary care and prudence, and his failure to do so caused or con- "tributed to his injury, he cannot recover, since the law is that where both parties are at fault the party sustaining the injury ■cannot recover. �If you find for the plaintiff you will assess his damages at «uch sum, not exceeding the sum claimed in the petition, ($8,000,) as you believe to be just and reasonable, under ail the circumstances, taking into account the physical injuries to the plaintiff, his pain and suffering, the expenses of nurses and physicians, his ability to earn a living since the acci- dent, as compared with his ability to do so before it occurred, and the probable effects upon his health and ability to earn a iiving in the future, as shown by the evidence. �In view of ail the evidence you will, if you find for plain- ����