Ames, J.
The town of Somerville, having been authorized by statute to construct an aqueduct for the supply of water to its inhabitants, had entered into a contract with Campbell for all the excavations that should become necessary for that purpose. These excavations were to be made in such streets and trenches as a committee of the town should from time to time direct, and were to be completed within a term of time limited by the contract. He on his part undertook to guard and light the trenches by night, for the protection of travellers; but it was not in the power of the town, and they probably did not intend, so to delegate the care of the streets to him as to relieve themselves from their general responsibility for their safety and convenience. Notwithstanding the fact that his contract included all the work that was to be done, he was the servant and agent of the town. He was working for the town, under direction from the town, given from time to time, as to the places where he should work; and the nature of the work was such as necessarily to interfere with and embarrass, to a greater or less extent, the free use of the streets. In contemplation of law, the excavation referred to in the declaration was made by the town itself; and therefore there was no occasion to prove that it had any notice, actual or constructive, of the condition of the street. There could be no occasion to notify the defendants of their own acts.
The defendants next contend that there is no sufficient evidence that the plaintiff herself was in the exercise of ordinary and reasonable care at the time of the accident, and that the jury should have been so instructed. It is too well settled to be now brought *275in question, that there may be a state of things in the trial of a cause, in which it is the duty of the court either to instruct the jury that there is no evidence upon which the plaintiff is entitled to recover, or on which the other party can maintain his defence. Such a course of proceeding in a proper case is not an invasion of the province of the jury. The rule of law upon which it depends is simple and intelligible in itself, although, in the wide diversity of the cases in which it is discussed, there is some practical difficulty in its application, and perhaps some apparent conflict in the decisions upon the subject. Thus, upon this subject of negligence, it has been held as matter of law, that an attempt to cross a railroad tram by going between two cars in motion, Gahagan v. Boston & Lowell Railroad Co. 1 Allen, 187 ; leaving a train of cars after it had started, Lucas v. Taunton & New Bedford Railroad Co. 6 Gray, 64; leaping from a train while in motion, Gavett v. Manchester & Lawrence Railroad Co. 16 Gray, 501; crossing a railroad track in front of an approaching train without looking up, Butterfield v. Western Railroad Co. 10 Allen, 532; Wilds v. Hudson River Railroad Co. 24 N.Y. 430" court="NY" date_filed="1862-06-05" href="https://app.midpage.ai/document/wilds-v--the-hudson-river-railroad-company-3598502?utm_source=webapp" opinion_id="3598502">24 N. Y. 430; if without any reasonable excuse, are facts upon which the jury should be told that they cannot find that the party so conducting was in the exercise of due and reasonable care. But in all of these cases there was no dispute about the facts; nothing material was left in doubt; there was no question as to the credibility of witnesses; and nothing was left to be inferred in the way of explanation or excuse. In such cases, the court may properly decide that no case is proved which could in law support a ver. diet for a plaintiff, and that the testimony furnishes nothing for the consideration of the jury. In Denny v. Williams, 5 Allen, 1, this court has said that it is not necessary, in order to apply the rule, that there should be absolutely no evidence, provided the scintilla of evidence be so slight that the court would feel bound to set aside any number of verdicts resting on no other foundation.
It is impossible to say that the case at bar falls within the rule. It is enough that the facts were in dispute; there certainly was evidence tending to show that there were no lights at the opening *276where the plaintiff fell; and whether there were any lights in the neighborhood, and if so, how near, and where, and whether they were sufficient to reach the spot where she fell, were all matters in controversy, upon which the jury alone could decide. Whether they have judged correctly as to the weight and sufficiency of the evidence, is not the question submitted for our determination.
As to the remaining point, concerning the admission of testimony to the effect that there were no lights there on Friday night, which was given before it had been made sure whether the accident happened on that or the next night, we think the defendants have no ground of exception. It was competent when received, and the jury were charged to give it no consideration unless the witnesses were in fact speaking of the identical night on which the accident happened. Exceptions overruled.