delivered the opinion of the court.
*4762. Dismissal, nonsuit and discontinuance, § 17*—what constitutes discontinuance. Failure to amend a declaration after' leave, upon sustaining a demurrer to such declaration, operates as a discontinuance of the suit as to the defendant or defendants filing the demurrer.
3. Municipal cobpobations, § 1107*—when refusal to direct verdict for city in action for negligent injuries is erroneous. In an action against a city to recover damages for personal injuries alleged to have been sustained by plaintiff while walking along a certain cinder walk, and in the exercise of ordinary care for his own safety, owing to the negligence of the defendant in the care of a fence constructed by it along the walk to protect pedestrians from an adjacent vacant lot considerably below the level of the walk, and the defective condition of such fence, by reason whereof the plaintiff fell off the walk into the lot and was injured, where the proof showed that the plaintiff, a very young lad, was, in fact while sitting on the edge of the walk above the lot his feet hanging over, pushed by a little girl with whom he was disputing so that he fell into the lot and thereby sustained the injuries complained of, instead of in the manner alleged in the declaration, 'held that refusal to instruct a verdict for the defendant was reversible error.
4. Municipal cobpobations, § 968*—when injuries to person falling through defective guard fence not proximate result of negligence of city. In an action to recover damages against a city for personal injuries alleged to have been caused by the city’s negligent care of a fence constructed by it along a certain sidewalk to protect pedestrians from a vacant lot adjacent considerably below the level of the walk, where the proof showed plaintiff, while sitting on the edge of the walk above the lot with his feet hanging over, was pushed by another party so that he fell into the lot and thereby sustained the injuries complained of, held that it could not be said such injuries were either the natural or probable result of the negligence of the city.