Opinion by
Me. Justice Elkin,
The plaintiff was a passenger in the automobile which ran into a hole in the street, thus causing the accident from which his injuries resulted. Several persons were injured and separate suits were brought to recover damages. We have just considered two of the cases growing out of the same accident, and the case at bar is controlled by what was there said both as to .the law and facts. At the trial the burden was on plaintiff to show that the street in question had been negligently maintained; that the city either had constructive or actual notice of the defective condition in time to make repairs; and that the defective condition of the street was the proximate, cause of the injuries. The plaintiff assumed the burden and introduced testimony relating to each of these questions. The evidence is convincing that the street was in a defective condition, also that the city had
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notice of the defective condition; and the jury found that the defects complained of caused the injuries for which damages are claimed in this action. The contributory negligence of plaintiff was relied on as a defense at the trial, and this question was submitted to the jury with full instructions as to what the law requires in this respect. We cannot see how appellant can justly complain of the manner in which every question involving the rights of the parties was submitted to the jury: That it was a case for the jury must be conceded, and that it was fairly submitted cannot be gainsaid. Under the facts of this case there is no merit in the contention that the learned trial judge erred in refusing to withdraw a juror and continue the case. This is a matter largely in the discretion of the trial judge, and there was nothing in the conduct of the trial to bring the case within the rule of those cases- in which improper remarks were made by counsel, or in which irrelevant testimony was improperly offered for the very purpose of creating a prejudice in the minds of jurors. There is nothing of that character in the case at bar, and certainly nothing to justify a reversal of the judgment for that reason.
Judgment affirmed.