
    FRANCIS X. DANT v. THE DISTRICT OF COLUMBIA.
    At Law. —
    No. 9463.
    I. When the defendant moves the court for a now trial at the general term in the first instance, for the reason that the evidence is insufficient or the damages excessive, a case containing all the evidence should be settled and signed by the justice who tried the cause.
    II. In an action for negligence, the defendant is not liable for damages when the plaintiff’s fault contributed to the injury.
    STATEMENT 0E THE CASE.
    This was an action on the case for negligence of the defendant in regard to a street or highway in the city of Washington. The plaintiff alleged in his declaration that the defendant was bound to keep Delaware avenue in repair as a'public highway for safe and convenient passage; that on November 14, 1871, it was out of repair and in a dangerous and unsafe condition by reason of defendant’s negligence, and that the plaintiff, while using due care and lawfully passing over, and in the middle of said highway, in the nighttime, fell into an excavation left unguarded through defendant’s negligence, and received certain injuries. Defendant pleaded the general issue, and also a special plea that it was not intrusted with the care of, and had no control over, the avenue mentioned in the declaration at the time of the occurrence of the alleged accident.
    The testimony on the trial is contained in a case, and is to the effect or substance that the plaintiff, on the eveuing of November 14, 1871, reached his home on Fifth street, between L and M streets northeast, by a route which he habitually traveled, and which was, in fact, perfectly safe. Iiis wife informed him that his son was ill, and that he must go immediately to the apothecary’s for medicine. Tie started at once for an apothecary shop on the corner of H and North Capitol streets, intending to proceed along the route he had just passed over in coming home. The night was dark and rainy, and, missing his way, he turned into an alley, supposing it to be I street. This alley was intersected by Delaware avenue, the surface of which, on the west side, had beeu cut down, leaving the other side of said avenue at its old grade— on a level with Second street, and with a continuous surface thereto. The plaintiff, proceeding in haste along the alley above mentioned aud over the east side of Delaware avenue, fell down the embankment formed by the lower grade on the west side of that avenue. He knew that the cut was there. He had passed it as often as twice a day for three years. He would not have gone up there but for the darkuess, for he was aware that even in the day-time, if he had gone up the alley, he could not have gone through.
    The excavation in the avenue was made by the late corporation of Washington in 1870, and prior to the act of February 21, 1871, entitled “An act to provide a government for the District of Columbia,” (16 Stat. at L., 419,) repealing the charter of the city of Washington and creating a municipality called the District of Columbia.
    There were other unobstructed routes by which the plaintiff could have reached his destination. On the western side of Delaware avenue there was a sidewalk, and about one-half of the avenue was in a condition for travelers alongside of the place of the accident. All the instructions asked for by defendant’s counsel were granted by the court, and the jury returned a verdict in favor of the plaintiff' for the sum of $5,000.
    Upon the rendering of this verdict a motion was made for a now trial upon the judge’s minutes, on the ground that said verdict was contrary to law and the evidence in the case, that the damages were excessive, and that the jury disregarded the instructions of the court. The motion was overruled, and defendant’s counsel excepted and took an appeal to the general term. A case to move for a new trial at the general term was then prepared, containing all the evidence taken on the trial, and which has been duly certified by the presiding justice. The plaintiff’s counsel excepted to the signing and sealing of the case, and this is one of the questions to be determined.
    
      Waiter Davidge and R. Fendall, for plaintiff.
    
      William Birney, for defendant.
   By the Court:

The question as to whether the evidence was insufficient to support the verdict, or the damages excessive, is properly presented in the case settled by the justice who presided at the trial. How can we determine whether it is sufficient unless it is submitted to our examination ? An exception only presents a single ruling or decision for review, and brings up the testimony necessarily affecting that point. A case is, therefore, allowed as well' as a bill of exceptions. "When a motion for a new trial upon the minutes of the judge is denied, an appeal is expressly given by the statute to the general term, and then a case or bill of exceptions is to be settled in the usual manner; (Rev. Stat. D. C., sec. 805;) and when the motion is made for any reason requiring an examination of the whole evidence, the expedient of a case must be resorted to instead of a bill of exceptions. A case containing all the testimony is the proper practice when the motion for a new trial is founded upon its insufficiency, or where the damages are excessive. In no other mode can the legal effect of the evidence produced at the trial be determined in a review of the verdict.

The court are also of opinion that the state of facts presented by the evidence constitute a state of mixed fault or contributory negligence, and that the District is not, therefore, responsible in damage. A new trial is ordered.

Humphreys, «J., dissented.  