Opinion of the Court. [37 App. think the refused instructions were not of that character. They embody the proposition contended for by the appellant, that it was plaintiff's duty "not only to consult, but be guided by the advice of her surgeon." Embodying that proposition, the refused instructions declared, as matter of law, that it was the duty of plaintiff to follow the advice of her surgeon, and undergo the suggested operation. The only question of fact left to the jury was whether such operation, if performed, would in all probability have resulted in effecting a cure. If they so found, they were told that the refusal to undergo the operation constituted negligence on her part, which would prevent her recovery of damages for suffering an injury extending beyond the time when such operation might have reasonably been performed and a cure effected, after she received such advice. We are of the opinion that the instructions, if given, would have constituted an invasion of the province of the jury, and that they were therefore properly refused. Whether an injured person has been guilty of negligence contributing to the receipt of the injury is always a question of fact for the determination of the jury. For the same reason, it is a question of fact, whether after an injury the party has neglected to use reasonable precautions and remedies that would in all probability have prevented future suffering and incapacity. It is only in those cases where the evidence of contributory negligence is so strong and convincing that all reasonable minds could come to no other conclusion than that it existed, that the court is justified in directing a verdict on that ground. That is not the case here. Confessedly, the operation advised as a last resort was attended with danger to life. Nor is it at all certain that it would have relieved the plaintiff. It was an unusual operation. The plaintiff's surgeon, and apparently the profession, had heard of its performance in but two cases. One of these had failed to remedy the injury; the result of the other was not known. The two operations that had been performed by defendant's surgeon were unknown tothe profession at large; in fact they had not been made the subject of a report, because he was not certain that they had ef fected permanent relief, although one had been performed three years before, and the other eighteen months. It would be unreasonable to say that one who has been injured by the negligence of another is bound in law to undergo a serious surgical operation, which would necessarily be attended with some risk of failure and of death. Certainly one has some liberty of choice under such circumstances. The most that the wrongdoer could demand would be that the jury should be permitted to determine whether the refusal of the injured person to suffer such an operation, under all of the circumstances, was unreasonable, and wanting in ordinary care, and productive of increased damages. There was no error either in the charge given, or in refusing the special instructions; and the judgment will therefore be affirmed, with costs. Affirmed. On application of the appellant a writ of error to the Supreme Court of the United States was allowed. SHOEMAKER COMPANY v. MUNSEY. EVIDENCE; PRINCIPAL AND AGENT; LANDLORD AND TENANT; EQUITY. 1. While the assessed value of property for the purpose of taxation is not competent evidence in fixing its value in an independent proceeding, this rule does not extend to evidence given by the owner of the property for the purpose of influencing tax officers in arriving at the proper valuation on which to base an assessment of taxes. 2. Where the issue between the parties to a suit is the value at a given time of certain land owned by one of them, an affidavit made by the attorney and agent of the owner, filed with the taxing authorities about two years before, stating the value of the property, is admissible against the owner as a declaration by him through his agent against interest. 3. Where the renewal clause of a lease provides for the appraisement of the demised property for the purpose of determining what the rent shall be during the renewal period, and that until the appraisement shall be made the rent shall continue at the old rate, and the parties being unable to agree upon appraisers, one of them brings suit for the purpose of having an appraisement judicially made, the tenant is entitled to pay rent at the old rate until the date of the entry of the final decree on the report of the appraisers appointed by the court fixing the new rate. 4. The valuation of a tract of land by a commission to condemn land is inadmissible as evidence in an equity suit involving the question of the valuation of another tract of land, where there is nothing to show similarity in the location, improvements, and the use to which the two tracts are to be put, and the party objecting to the evidence was not a party to the condemnation proceeding. 5. Where a lease provided for a renewal at a rental equivalent to 6 per cent of the value of the demised land, and for the appointment of appraisers to determine the value of the property, and, the landlord and tenant being unable to agree upon appraisers, the tenant brought suit to determine the value, and the court, without objection by the defendant, appointed commissioners to appraise the value of the property, such procedure was adversely criticized by this court in an opinion reversing the decree based upon the report of the commissioners, and it was suggested that the lower court try the cause in a manner conforming to usual equity procedure. No. 2247. Submitted March 8, 1911. Decided April 3, 1911. HEARING on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia, sitting as a court of equity, in a suit by a tenant against the landlord to fix the value of demised land and premises. Reversed. The COURT in the opinion stated the facts as follows: This is an appeal from a decree of the supreme court of the District of Columbia in an action between a landlord and his tenant. On June 28, 1899, the owner of the property here in controversy leased it to appellant, the Shoemaker Company, plaintiff below, for a period of ten years, at the annual rental of $4,000, payable in equal monthly instalments, and agreed to renew the lease "for a further term of five years, from and after the determination of the term herein and hereby created, at a rental, per annum, payable as above specified, and subject to the provisions and conditions hereinabove specified, on the basis of 6 per centum on the value of said real estate, to be ascertained and fixed by disinterested appraisers to be appointed, one by the lessor * * * and the other by the lessee, its successors, or assigns, with power in said two appraisers in case of disagreement, to select an umpire, whose decision shall be final and binding upon all parties interested, and until said appraisement has been made, the rent for said premises shall continue at the rate of four thousand dollars ($4,000), as and payable as hereinabove specified." During the term of the original lease, defendant, Frank A. Munsey, became the owner of the property, subject to the lease. Prior to the expiration of the lease, plaintiff gave defendant notice of its intention to avail itself of the right of renewal for the further term of five years. The parties were unable to agree upon the rental for the renewal term. They also failed to agree upon the appointment of appraisers. About two months after the expiration of the original term, plaintiff filed its bill in the supreme court of the District of Columbia, averring among other things that the valuation of the property could not be ascertained but through the intervention of the court, and praying accordingly. Defendant answered, and on bill and answer the court appointed three commissioners to ascertain the market value of the property, and report their findings or those of a majority of them, "subject to the action of the court in respect of approving, disapproving, or modifying the same." The court instructed the commissioners as to their duties, and they proceeded to take testimony to determine the value of the property, as ordered by the court. Two of the commissioners reported the value of the premises, land, and improvements to be $103,652.50, and the other fixed the value at $75,000. On filing the report, the court passed an order allowing the parties fifteen days "within which to file objections to the said report and Vol. XXXVII.—7. appraisement, and to take such other action in relation thereto as they may be advised." Plaintiff filed seventeen separate exceptions and objections to the report. Defendant filed none. On final hearing the court overruled the exceptions and objections of plaintiff, and adopted and approved the report of the commissioners, decreeing as follows: "That the value of said property, as of the 1st day of July, A. D. 1909, for the purposes of the renewal term in and by the said lease provided, be, and the same hereby is, fixed at the sum of $103,652.50, and that the rent of the said property for the said renewal term, to wit, the term of five years from and after the 1st day of July, a. d. 1909, be, and the same hereby is, fixed at the annual sum of $6,219.15, to be paid in monthly instalments of $518.25 each, payable at the said rate from the said 1st day of July, A. D. 1909, in advance, * that the defendant execute and deliver to the complainant a lease of the said property for the renewal term of five years aforesaid, upon the like terms and conditions as those of the said lease for the original term, save and except as to the annual rent, except the renewal provision therein." * * * and * Mr. Henry E. Davis for the appellant. * * * * * and save and Mr. Wilton J. Lambert and Mr. Rudolph H. Yeatman for the appellee. Mr. Justice VAN ORSDEL delivered the opinion of the Court: The first error complained of relates to the fifth instruction given by the court to the commissioners for their guidance in fixing the market value of the property. The instruction is as follows: "The commissioners are further instructed that they shall take no evidence with respect to any proceedings had either by the board of assessors of the District of Columbia or the board of equalization and review, or any evidence touching any proceedings had relative to the fixing or reduction of the valuation |