given, the decree of the circuit court for Washington county will be affirmed.

Decree affirmed, with costs in this court and in the court below.

The Power of a Municipality to Declare What is a Nuisance is the subject of a note to Miller v. Town of Syracuse, 120 Am. St. Rep. 372. The Validity of Municipal Ordinances vesting arbitrary discretion in the city council, or some board or officer, is discussed in the note to City Council of Montgomery v. West, 123 Am. St. Rep. 36.

Ordinances Regulating and Prohibiting the keeping of livestock and stables are ordinarily upheld as a proper exercise of the police power: Miller v. Town of Syracuse, 168 Ind. 230, 120 Am. St. Rep. 366; City of St. Louis v. Fischer, 167 Mo. 654, 99 Am. St. Rep. 614; State v. Hord, 122 N. C. 1092, 65 Am. St. Rep. 743.

CHESAPEAKE AND POTOMAC TELEPHONE COMPANY v. LYSHER.

[107 Md. 237, 68 Atl. 619.]

PUBLIC STREET-Injury to Blind Man by Falling into Hole.Where a blind man walking along a street with which he is familiar and feeling his way with a cane falls into an unguarded hole dug by a telephone company, the question of his contributory negligence and of the negligence of the company is for the jury. (p. 391.)

George Dobbin Penniman, for the appellant.

Arthur P. Shanklin and Alexander Hardcastle, Jr., for the appellee.

238 BRISCOE, J. The plaintiff is a blind man living at No. 1622 North Bradford street, Baltimore City. He was employed at the Maryland 239 School for the Blind as a broom-sewer in one of its workshops. He was injured on the twentieth day of January, 1906, while walking on the west side of Bradford street between Federal and Lanvale streets, by falling into a hole, which had been dug in the sidewalk, and left open and unguarded by the defendant corporation.

The declaration states that the defendant is a corporation owning and operating a telephone service in the city of Baltimore and state of Maryland. That on or about the twentieth day of January, 1906, the defendant, by its servants and agents, dug in the sidewalk on the west side of Bradford street, between Federal and Lanvale streets, a deep hole, and

left the same open and unguarded, and the plaintiff while walking on Bradford street in the ordinary pursuance of his business fell into the hole dug by the defendant, its servants and agents, and left unprotected and unguarded by them, and by reason of the negligence of the defendant and its servants and agents in charge of the digging of the hole was grievously injured, and the plaintiff used due care but the defendant did not use due care.

The principal question before us is the ruling of the court upon the prayers, and this will require an examination of the evidence set out in the record.

The plaintiff was the chief witness, and testified that he lived with his brother in law at 1622 North Bradford street; that he had been blind for twenty-one years and was employed in the workshop at the Maryland School for the Blind; that he had been connected with the school for twelve years, and he had been employed in the broom-shop of the school for four years; that in going from his home on Bradford street to the School for the Blind, which is on the north side of North avenue between Calvert street and Guilford avenue, he walked south on the west side of Bradford street to Federal street and east on the north side of Federal street to the northeast corner of Milton avenue and Federal street, where he boarded a car and rode to Guilford and North avenues. He then left the car and walked across the pavement, following the inner 240 curb of the pavement to the steps of the workshop, and that he had been going over the same ground for four years. That he moved along the street by passing his cane over the street in front of him, feeling along with his cane, following the curbstone as much as he could. He further testified that he was hurt on Saturday, January 20, 1906. That he went to work that morning and left the shop at five minutes of 12; that at the time he fell he was following the curbstone with his cane in the same way he always did. He fell in the hole as he was walking on the pavement with his stick in his right hand, in the same way he always used it. He was running it along the edge of the curb as he always did and he stepped into the hole. There was nothing around the hole to warn him there was an obstruction. That he was severely hurt about hip, arm and back. There was further testimony to the effect that the hole in which the plaintiff fell had been dug by the agents of the defendant corporation along the footway or pavement of the street for the purpose of planting a telephone pole,

and the hole was open and unprotected at the time of the accident.

The defendant's prayer, offered at the close of the plaintiff's case, to the effect that the uncontradicted evidence on the part of the plaintiff shows that he failed to use his stick to determine the condition of the pavement in front of him, and thereby walked in a hole which he could have discovered by the exercise of proper care on his part, and was thereby injured, was properly rejected. This proposition upon the evidence was clearly a question for the jury.

At the conclusion of the evidence the plaintiff offered two prayers, both of which were granted, and the defendant offered twelve, of which the fifth, sixth, ninth and twelfth were granted and all the others were rejected.

The plaintiff's first and second prayers were properly granted, and have frequently been sustained by this court in damage cases, where the case is submitted to the jury and need not be discussed here.

241

The court committed no error in overruling the special exceptions to these prayers. There was evidence to sustain the propositions asserted by them, if believed by the jury.

It is plainly apparent, we think, that if the rejected prayers of the defendant had been granted by the court below, it would have been a manifest invasion of the province of the jury in determining the question of negligence on the part of the defendant and of contributory negligence on the part of the plaintiff. These were both questions for the consideration of the jury under the facts of the case, and were fully and fairly submitted to the jury under the plaintiff's and defendant's granted prayers. The vital question in the case was whether the plaintiff, a blind man, exercised due care in passing along the sidewalk on the west side of Bradford street on the day of the accident. By the defendant's fifth prayer the question of due care was directly submitted to the jury, to the effect that if the jury believed the accident would not have happened if the plaintiff had used proper care on his part, then the verdict of the jury must be for the defendant.

By its ninth prayer the jury were further told that if they believe that both the plaintiff and defendant were negligent, then their verdict must be for the defendant, as the plaintiff could not recover if his negligence contributed to the accident.

The standard of care sought to be fixed in such cases by the defendant's rejected prayers is not "the ordinary care" sanctioned by the adjudicated cases: Fennemen v. Holden, 75 Md. 1, 22 Atl. 1049.

In Sleeper v. Sandown, 52 N. H. 244, where a blind man, in the daytime, walked off the side of an unobstructed bridge sixteen feet in width, which was defective for want of a rail, and suffered an injury, it was held that the court could not say, as a matter of law, that his fault contributed to the accident; but it was for the jury, after considering his familiarity with the road, his ability arising from the increased acuteness, fidelity and power of his other senses or otherwise, and all the circumstances of the case, to say whether he was guilty of carelessness in attempting to pass the bridge without a guide.

242 In Smith v. Wildes, 143 Mass. 556, 10 N. E. 446, a somewhat similar case, in a suit against the keeper of a shop for personal injuries occasioned to the plaintiff, a blind man, while walking unattended along a street in a city, by falling into a hole in the sidewalk of a street, it was held that the questions of due care on the part of the plaintiff and negligence on the part of the defendant were for the jury, under the facts of the case: Harris v. Uebelhoer, 75 N. Y. 169; Stewart v. Ripon, 38 Wis. 584; City of Franklin v. Harter, 127 Ind. 446, 26 N. E. 882.

For the reasons stated, it follows there was no error of which the appellant is entitled to complain in the rulings of the court upon the prayers, and as the case was properly submitted to the jury, the judgment will be affirmed.

Judgment affirmed, with costs.

The Law Requires Persons Who are Blind or Deaf to exercise a somewhat greater degree of care for their own safety than it requires of other persons not so afflicted, in order to relieve them of a charge of contributory negligence: Karl v. Juniata County, 206 Pa. 633, 56 Atl. 78; Thompson v. Salt Lake Rapid Transit Co., 16 Utah, 281, 67 Am. St. Rep. 621. But clearly it is not negligence, as a matter of law, for a blind man to go upon a street with which he is acquainted, and he has a right to rely, at least to some extent, on the supposition that holes and pitfalls in the street will not be left unguarded: Smith v. Wildes, 143 Mass. 556, 10 N. E. 446; Franklin v. Harter, 127 Ind. 446, 26 N. E. 882. In Florida Cent. etc. R. R. Co. v. Williams, 37 Fla. 406, 20 South. 558, it is said that the blind have as much right to frequent railroad depots, public crossings, and other places of danger as any other of the general public; but that when they do so, due care dictates that they must provide themselves with such surroundings while there as are reasonably necessary to avoid upon their part all known dangers that encompass the place.

SAXTON V. KRUMM.

[107 Md. 393, 68 Atl. 1056.]

WILLS-What Amounts to Undue Influence.-The influence which vitiates a will must be exerted upon the testator to such a degree as to amount to force or coercion, or by importunities which he could not resist, so that the motive was tantamount to force or fear. (p. 394.)

WILLS-Unnatural Disposition of Property.-Neither an illicit relation between the testator and his beneficiary, nor an unjust and unnatural disposition of his property, is sufficient per se to warrant a conclusion of undue influence. They are circumstances properly to be considered by the jury in connection with evidence of undue influence, but are not in themselves evidence either of fraud or undue influence. (p. 396.)

WILLS.-Where a Testator Gives All His Property to His Mistress, and makes no provision for his relatives, including an aged and dependent sister, this raises no presumption of undue influence, and the will must be given effect in the absence of any other vitiating circumstances. (pp. 398, 399.)

A. C. Strite, Charles D. Wagaman, Wm. F. Shay and Ferdinand Williams, for the appellant.

Alex. Armstrong, Jr., Norman B. Scott, Jr., J. Clarence Lane and A. A. Doub, for the appellee.

398 BURKE, J. A paper-writing dated the fourteenth day of January, 1899, purporting to be the last will and testament of Christian F. Young, was offered for probate in the orphans' court of Washington county. By this paper the testator gave and bequeathed to Mrs. Lewis Krumm his house and lot situated in Watsontown, Pennsylvania, and all his money in banks, and all notes and bonds, and all valuables in his name and in his possession, if she survived him. On the petition and caveat of the appellant, who is a sister of the testator, three issues were sent to the circuit court for Washington county for trial. The first issue related to the execution and attestation of the will; and the second and third issues related to fraud and undue influence exercised and practiced upon the testator in the making of the will. The case was removed to the circuit court for Allegany county. The trial in that court resulted in a verdict for the defendant upon each of the issues.

This record brings up for review certain rulings of the lower court made during the trial. There are three exceptions in the record. Two relate to rulings upon questions of evidence and one to the action of the court upon the prayers. At the close of the plaintiff's case the court granted