view point of public interests as well. It is evident from the language of the statute that the Legislature considered the interests both of the individual and the public.

The statute does not authorize any interference with the place or occupation, which is charged to be a nuisance menacing the public health, until it is determined to be such after ample notice and full hearing. In giving the right of appeal from such determination the Legislature was confronted with the fact that to permit the nuisance to continue pending the appeal would be hazardous to the public health, perchance to human lives, and, on the other hand, to require the appellant to comply with the order pending the appeal would, if there was any reasonable delay in its prosecution, result in serious pecuniary loss, if the appeal should be determined in appellant's favor. In this situation considerations of public health and safety rightly prevailed; but, to make the condition of appeal as favorable to the appellant as practicable, the statute made provisions for a prompt hearing and determination of the appeal, by providing for a special term of court to hear it, if necessary.

We hold the statute in question to be constitutional, as a valid exercise of the police power.

Order affirmed.

HALNESS v. ANDERSON.

START, C. J. This is an appeal from an order of the district court of the county of Clay, granting the defendant's motion for a new trial in an action to recover damages for a breach of promise of marriage. The motion was based upon several alleged errors, particularly upon the ground of excessive damages, appearing to have been given under the influence of passion and prejudice. The new trial was granted for this reason only, as appears from the memorandum of the trial judge, which is as follows: "The only ground, in my opinion, upon which the defendant is entitled to a new trial, is excessive damages, appearing to have been given under the influence of passion and prejudice; and upon this ground he is entitled to a new trial, unless the plaintiff shall stipulate to take judgment for a reasonable amount. It is difficult to conceive how, from the evidence, a verdict of $1,500 could have been found by the jury. A judgment of $500 is certainly all she is entitled to."

It appears from the record and briefs of counsel that there have been two jury trials of this case, both before the same judge. On the first trial the plaintiff had a verdict for $2,500, which the court deemed to be excessive, and a new trial was granted, unless the plaintiff would reduce her verdict to $500, which she declined to do. A new trial was had, resulting in a verdict for the plaintiff in the sum of $1,500, and the court made its order granting a second new trial for excessive damages, unless the plaintiff would consent to

(Supreme Court of Minnesota. Feb. 18, 1910.) a reduction of the verdict to $500.

(Syllabus by the Court.)

1. NEW TRIAL (§ 78*)-EXCESSIVE DAMAGESSECOND NEW TRIAL.

Where the plaintiff has a constitutional right to a trial by jury, and the damages to be awarded are largely within its discretion, the trial judge ought not to grant a second new trial for excessive damages, unless they are so excessive as unmistakably to indicate that the verdict must have been the result of passion or prejudice.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. § 165; Dec. Dig. § 78.*]

2. BREACH OF MARRIAGE PROMISE (§ 31*)DAMAGES.

It was error to grant a new trial in this an action for a breach of promise of marriage, unless the plaintiff would reduce her verdict for $1,500 to $500.

[Ed. Note.-For other cases, see Breach of Marriage Promise, Cent. Dig. § 47; Dec. Dig. § 31.*]

Appeal from District Court, Clay County; L. L. Baxter, Judge.

Action by Bertha K. Halness against John A. Anderson. Verdict for plaintiff. From an order granting a new trial, plaintiff appeals.

Reversed, and verdict reinstated.

Nye & Dosland, for appellant. W. Geo. Hammett and Peterson & Adams, for respondent.

Where the plaintiff has a constitutional right to a trial by jury, and the damages to be awarded are largely within its discretion, the trial judge ought not to grant a second new trial for excessive damages, unless they are so excessive as unmistakably to indicate that the verdict must have been the result of passion or prejudice. Peterson v. Telegraph Co., 65 Minn. 18-24, 67 N. W. 646, 33 L. R. A. 302; Fischer v. Sperl, 100 Minn. 198, 110 N. W. 853. If a trial judge may, in the exercise of his discretion, set aside successive verdicts, based on substantially the same evidence, merely because the award of damages is, in his opinion, materially greater than it ought to have been, then he may so exercise his discretion as to compel the acceptance of his opinion, and thereby deprive the plaintiff of a constitutional right; for there is a limit to the ability of the average suitor to continue the contest against the judge.

The only question for our decision presented by the record is whether, within the rule stated, the damages awarded were so excessdict by the trial judge in the exercise of a ive as to justify the setting aside of the ver

fair discretion. Mohr v. Williams, 95 Minn. 261-266, 104 N. W. 12, 1 L. R. A. (N. S.) 439, 111 Am. St. Rep. 462. The evidence in mate rial respects was conflicting, but it was suffi

cient to justify the jury in finding substan- | fully standing. tially the following facts:

The defendant, in September, 1904, was a farmer, and a widower, living on his farm near Hawley, this state. The plaintiff was then a single woman 38 years old, and virtuous for aught that appears from the evidence. At the time stated she entered the plaintiff's service as a domestic servant and housekeeper in his home on his farm. In a few weeks thereafter he requested her to marry him, to which she consented. After he promised to marry her, he solicited her to have sexual intercourse with him, and she consented, because she believed he would marry her. Thereupon they had such intercourse, and, as a result of such relation, she became pregnant and gave birth to a child on August 2, 1905. The defendant broke up housekeeping December 24, 1904, and the plaintiff left his service. She again entered his service as housekeeper April 6, 1906, and continued He therein for one year and six months. told her, after she entered his service the second time, that he would marry her. They resumed sexual intercourse in January, 1907, and as a result she gave birth to a second child. She repeatedly asked the defendant to marry her, and he refused to do so. 240 acres of farming land, which is incumbered, also horses and machinery for carrying on his farm, and he is worth from $2,400 to $3,000 in excess of all liabilities. He denied that he ever promised to marry the plaintiff, but admitted their intercourse, and that he was the father of her children. He is paying something for the support of the two children under bastardy proceedings against him, but to what extent is not disclosed by the record. We are of the opinion, based upon a careful consideration of the record, that the damages awarded are not so excessive as to justify the conclusion that they must have been given under the influence of passion and preju

dice, within the rule we have stated.

He has

If the

plaintiff's testimony be true, and of this the
jury were the sole judges, the damages are
It follows that
only fairly compensatory.
the trial court erred in setting aside the ver-
dict and granting a new trial, and the order
appealed from must be reversed, and the ver-

dict reinstated.

So ordered.

LYFORD V. JACOB SCHMIDT BREWING

CO.

(Supreme Court of Minnesota. Feb. 11, 1910.) (Syllabus by the Court.)

1. HIGHWAYS (§ 175*)-LAW OF THE ROADCONSTRUCTION OF STATUTE.

Action to recover damages sustained by a collision between the plaintiff's buggy and the defendant's wagon in a public street while the wagon was being driven diagonally across the street to the side where the buggy was right

Verdict for the defendant. Held, section 1258, Rev. Laws 1905, the law of the road, is intended to secure the safety and convenience of persons traveling in vehicles meeting and passing each other upon highways. As a general rule it has no application to vehicles crossing from one side of the street or highway to the other. It has no application to the facts of this case. [Ed. Note.-For other cases, see Highways, Cent. Dig. § 461; Dec. Dig. § 175.*] 2. VERDICT SUSTAINED BY EVIDENCE.

The verdict is sustained by the evidence. The trial court did not err in its charge to the jury, nor in its ruling as to the admission of evidence.

Appeal from District Court, Ramsey County; Oscar Hallam, Judge.

Action by C. C. Lyford against the Jacob Schmidt Brewing Company. Verdict for defendant. From an order denying a new trial, plaintiff appeals. Affirmed.

Francis B. Hart and P. J. McLaughlin, for appellant. Price Wickersham and S. J. Donnelly, for respondent.

START, C. J. On September 5, 1908, a collision occurred at or near the northwest corner of Snelling and University avenues, in the city of St. Paul, between the defendant's brewery wagon, in charge of its driver, and the plaintiff's buggy, in which he was sitting, whereby the plaintiff was thrown to the ground and injured, and his buggy and harness were damaged. This action was prosecuted in the district court of the county of Ramsey to recover the damages so sustained, on the ground that the collision was caused by the alleged negligence of the driver in driving the wagon diagonally across Snelling avenue and onto the right side thereof, where the plaintiff's buggy was standing. The alleged negligence was denied by the answer. The trial court submitted this issue to the jury, and at the close of its instructions the plaintiff for the first time requested the court to instruct the jury, in substance, "that defendant's driver failed to exercise ordinary care, in crossing to the west side of the street in close proximity to the plaintiff's rig, under the circumstances and in the manner narrated by him, as a matter of law." The request was denied. There was a verdict for the defendant. The plaintiff made a motion for a new trial, and appealed from an order denying it. He here assigns eight alleged errors. The first seven are properly grouped and discussed in the brief of the plaintiff's counsel under the general claim that the verdict is not justified by the evidence.

The first contention in this connection is, in effect, that the law of the road applies to the facts of this case; that the court erred in refusing so to instruct the jury, as requested, that "it was the duty of the brewery wagon [the driver thereof] to refrain from crossing to the west half of the street until the plaintiff's vehicle should have vacated

the same"; and, further, that a violation of vehicle should have vacated the same"; but this duty constituted negligence. Counsel for plaintiff treats his requested instruction as the equivalent of a request to instruct that the law of the road was applicable to this case, and that the driver violated it, and was therefore negligent in the premises | dence, a question of fact, which was propas a matter of law. It would seem from the memorandum attached to the order denying the motion for a new trial that the trial court so understood the requested instruction. While it is doubtful upon the face of the requested instruction whether it can be so construed, we accept plaintiff's construction of it for the purpose of this appeal.

Upon a careful consideration of the evidence we have reached the conclusion that the statute in question has no application to No question is made that the plaintiff was this case; that the requested instruction was not a passenger on the defendant's car, and properly refused; that it was not the duty it is practically admitted that she fell from of the driver "to refrain from crossing to the the steps of the car to the ground and was west half of the street until the plaintiff's | injured. The plaintiff and her daughter, who

was also a passenger on the car, testified acre tract of land described as the N. 1⁄2 of to the effect that the car stopped, and as the plaintiff was about to step down from the last step the car started up with some thing of a jerk, which threw her to the ground; the gates being still opened. On the other hand, nine witnesses, who were either employés of the defendant, or passengers, or bystanders, were called by the defendant, and each testified with more or less directness that the car was standing still, and that there was no movement thereof while the plaintiff was in the act of alighting. The attention of some of the witnesses, however, was not specially called to the plaintiff or the car until the happening of

the accident.

Upon a consideration of the whole evidence, we are of the opinion that the question of the defendant's negligence and whether it was the efficient cause of the plaintiff's injury was one of fact for the jury, and that the trial court properly exercised its discretion in denying the motion for a new trial.

Order affirmed.

WHITE et al. v. LIPPINCOTT et al. (No. 15,792.)

the N. E. 4 of section 29, township 1, range 10 W., in Webster county; the center of the highway being 151 feet south of the section line on the northern boundary of the tract. When the county commissioners made the order establishing the road, the 80-acre tract intersected by it was owned by Richard J. Skeen. Relying upon the record showing the center of the highway was 151 feet south of the section line, plaintiff purchased in good faith from Skeen February 7, 1907, all that portion of the N. W. 4 of the N. E. 4 of section 29 south of such highway. Subsequently defendant entered upon plaintiff's land for the purpose of grading a highway south of the one mentioned, where none had been established. There was a prayer for an injunction to prevent this alleged trespass. The proceedings of the county commissioners are set out in the answer of defendant, and show that a petition for the opening of a road across Skeen's 80-acre tract was filed February 6, 1906. They further show: The section line on the northern boundary was abandoned as a roadway to avoid a creek. A route varying from a direct line east and west was surveyed a short distance south of the section line, and a surveyor's plat showing the course was filed with the county clerk. According to

(Supreme Court of Nebraska. Feb. 10, 1910.) the plat, the point farthest south was in a

(Syllabus by the Court.)

Vendor and Purchaser (§ 228*)-BONA FIDE
PURCHASER-KNOWLEDGE OF LOCATION OF

HIGHWAY.

A purchaser of land affected by a highway established pursuant to the terms of a valid agreement executed by all persons pecuniarily interested cannot take advantage of an error in the county clerk's record entry describing the location, where such purchaser, before he bought the land, had knowledge of the actual location of the highway, or of facts from which such knowledge will be imputed.

draw or pocket opening toward the north into the channel of the creek. From this point the distance to the section line is marked on the plat as "151 feet." This route was adopted by the county commissioners June 21, 1906, and from an allowance for damages Skeen appealed to the district court. August 25, 1906, Skeen, the petitioners for the road, and the county commissioners entered into an agreement containing, among other things, the following: "The course of said road as the same crosses said eightyacre tract shall be and hereby is changed Appeal from District Court, Webster Coun- from that described in the order of said ty; Dungan, Judge.

[Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. § 228.*]

Action by Alfred C. White and others against William J. Lippincott and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

board of June 21, 1906, as follows: Said road shall be located straight across said eighty-acre tract from west to east at a distance of 151 feet from the north line of said eighty; said distance being the farthest

Bernard McNeny, for appellants. E. U. point south marked in the survey of said Overman, for appellees.

line of road, as reported in said proceedings. It is to be a forty-foot road; the said distance of 151 feet is the center line thereof. In constructing and opening said road for travel the said Webster county by its proper authorities shall cause a bridge to be built where the said line of road as herein provided for crosses a draw or pocket on said land Some of the facts alleged in the petition near the eastern boundary of said tract, in a are, in substance, as follows: October 3, substantial manner and of sufficient height 1906, a highway 40 feet wide on a line di- and width that stock may freely pass in unrectly east and west was by the county com- der the same and so that the said Skeen, as missioners duly established across an 80-owner of the land on both sides of the road, For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

ROSE, J. This is a suit for an injunction to prevent William J. Lippincott, a road overseer, from grading a highway on plaintiff's land. There was a general finding in favor of defendant, and, from a dismissal | of the suit, plaintiff appealed.