*1 6 L. ed. 756. Actually, although hearing the prosecu- tor’s opening statement in the Schwarting jurors heard evi- dence in that trial accused, regarding for the change in the pro- ceedings against Schwarting precluded submission of evidence to any the jury. What those jurors heard in the opening statement appellant’s trial the next day essentially same what heard they day before could not have influenced a prospective juror more any than it would a is no sitting juror. There indication that the jurors knew facts, any heard having the prosecution’s statement of what it ex- pected to prove. assertion that the Appellant’s must have known of Schwarting’s conviction subsequent influenced by is, record, that judgment on this sheer speculation. Appellant have ascertained relevant fact respecting juror’s or bias prior knowledge dire, by interrogation of in voir did jurors not do so. Having cause, failed to challenge juror right of had been challenge Jevne, waived. Kuske 938; v. 226 N. W. Atkinson v. Mock, 135 N. W. 892.

LORRAINE SULACK AND ANOTHER v. CHARLES T. MILLER

HOSPITAL.

165 N. W.

February 1969 No. 41072. *2 Schadeck, and Altman, Mulally, Kenneth M. Geraghty, Leonard & Corum, appellant. James M. for Mahoney, Angelí, for Mahoney, and John F. Geoffrey & J.

Mahoney respondents.

Peterson, Justice. at the the steps a fall down injured Lorraine Sulack was

Plaintiff as the defendant, Hospital, T. Miller Charles entrance to the of premises hose garden one strands of result of over of several tripping moved employees. defendant’s the steps by upon in loops laid plaintiff and for this plaintiff the verdicts judgment for was guilty Sulack Sulack, husband, that Mrs. contending Charles alternative, or, law, in the as a matter of erroneous and the instructions trial, contending new these motions. denying order is from the This appeal prejudicial. the un are stated in succinctly of the mishap The circumstances hose, A about IV2 or 1% herself: testimony plaintiff usually candid the en over winding arrangement laid in a diameter, had been inches entrance to the main leading steps several width of tire a banister landing or upper platform; across the and building and ran length those climbing steps up assistance further; saw the but no platform, plaintiff as far the entry of the steps to visit a pa- mother and sister with her hospital entered the hose as she so and was of the hazard that she warned her tient aware mother hose; over the was aware of the hose tripping plaintiff as she and, words, left the in her it” “looked as she negotiated across two or three on the strands she came to platform; one located only strand a few inches back from the first step down strand, over banister, stepping reached out for the obviously on the hose or tripping making a misstep downward; and, hose, doing, in so 2!^-inch heel was caught by fall causing her stumble and down the stairs.

Her situation is not unlike of the Village in Rudd v. plaintiff Bovey, 252 who was in a fall injured a defective upon sidewalk. block of municipal upon sidewalk in that case there were numerous holes walking, one depressions, about which was or IV2 inches in depth. IVa observed, had traversed the block times and many of, depres- was aware this particular condition sidewalk and It sion. was found in nothing that case there was distract plaintiff’s attention. in the case stated that she Similarly, *3 was “not case, distracted the by anything.” Unlike the instant in Rudd could have the hazard entirely avoided or by stepping There, left of the but decided to it. in an occurrence depression step over hardly distinguishable the the injured woman’s heel the the her causing struck to fall down. This court depression, it “clear” that the issue of held the jury. (2d) 252 Minn. issue, nevertheless,

The close. extremely Defendant here would re- the to the mere that plaintiff duce situation fact physical think, however, to her high enough. failed lift foot the totality the circumstances does not reduce itself so Under simply. all the circum- stances the could exercised jury plaintiff had care for ordinary we safety, own hold that she was not contributorily a matter of negligent as law.

The was instructed jury that neither plaintiff nor husband if she was guilty recover of contributory negligence and such if awas negligence contributing cause directly with defend- cooperating about the fall. Contributory ant’s in bringing prudent per- to care defined for the use which an failure like circumstances for his own usually protection. son exercises under The court added:

“* * * obvious obliged against The Plaintiff was to harm the should have the anticipated despite unless Defendant event be guilty in which not knowledge negligence.” fused portions that the latter instruction argues erroneously care care

plaintiff’s duty prejudicially with duty exer- into had no whatever to thinking misled the jury duty care for her own safety. cise the instruction is an challenged imprecise adaptation A, Restatement, to in and the comment that sec-

stated Torts § tion, for similar facts in Peterson v. W. adopted 497, 144 as follows: W.N. to invitees harm physical

“A of land is liable his possessor whose danger or condition on land by any activity caused to them them, or to should possessor anticipate unless the known obvious or obviousness. despite knowledge harm such $ ‡ ^[*] that the invitee suffer have reason will possessor may expect “[The or danger.] harm its known obvious physical “* * * has also arise where the Such reason may possessor or obvious invitee encounter known proceed will expect advantages because to reasonable man his danger position such cases fact risk. In outweigh apparent so would doing known, obvious, determining important or is negligence, assumption with contributory be charged invitee is to * * * not, however, determining duty conclusive It is of risk. the circum- reasonably under he has acted or whether possessor, *4 omitted.) (Italics stances.” whole, think were not preju- as a instructions, considered

We defense of contributory it Although argued dicial. when made no to the instructions

was defendant “destroyed,” objection of the fact that knowl- doubt left given. ignorant was judging was consideration in an important care under the circumstances. Defendant’s exercised reasonable have to primary position person reasonable would of law. under contributorily negligent Otis, (dissenting). Justice contributory negligence,

If there is left of the doctrine of anything it has to be matter of law the case at my as a opinion applied hand. the hose on through way This threaded her only into the her mother of the both in ascend- warned hospital, because she ing she fell is steps. over the hose she was at. There were no neglected looking which step distractions, the weather was clear and unlike Peterson v. W. dry, ur- 144 W. there N. for her undertake the hazardous route gent compulsion which the fact a does not grossly negligent pursued. my opinion, do with the dan- altogether for invitees avoid obvious away necessity care to avoid the gers exercise threat injury It is difficult for me to envision a case where presented. is more obvious. I reverse.

Knutson, Justice Chief (dissenting).

I Otis. with the dissent of Mr. Justice agree