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street in a reasonably safe condition throughout its entire width; that in some places, and especially in the outlying portions of the city, it may ordinarily determine what portions of the streets it will prepare for travel, and in such places it need only maintain that portion which is opened and set apart for travel in a reasonably safe condition; that whether the city has prepared a sufficient width for passage to respond to the needs of the public may be a question of fact for the jury, and as to whether the streets are maintained in a reasonably safe condition for travel (whether throughout their entire width where the whole width is opened, or over that portion which is opened and prepared for travel), is always a question of fact to be determined by the jury from all the facts and circumstances in the particular case. If it is made to appear, therefore, that the street is not one that has been prepared for travel throughout its entire width, or the particular place in question is one where this has not been done, the court should instruct the jury specially with regard to the duty of the city in this regard; and, if the question arises as to whether the city has prepared a sufficient width for travel where less than the whole width has been prepared, the jury should be required to find from all the facts and circumstances whether or not the space prepared by the city was reasonably sufficient, and in case the claim is made that the space prepared is insufficient, it seems to us this should be alleged in the complaint as one of the grounds of negligence, so that the city may be prepared to meet it at the trial. It seems to us no other rule is either practical or reasonable. The streets in this city, as disclosed by this record, are 132 feet from lot line to lot line, a portion of which is usually set apart for sidewalks. At the place where the accident in question occurred there were no sidewalks. If the theory of respondent is to prevail, and as it might have been assumed by the jury from the instruction, then the city would be compelled to maintain all of its wide streets throughout their entire width in a reasonably safe condition at all times and under all circumstances. Any person might then at will go or drive anywhere between the lot lines either by day or night, and if he encounters an obstacle, whether natural or artificial, and is injured thereby, the city must respond in damages if the jury find that the street was not reasonably safe with the obstruction in it. If, therefore, a person may drive anywhere and may presume the whole width of the street to be safe, how can a jury escape the conclusion that any obstruction anywhere makes the street unsafe? In this case we think the court, in substance at least, should have instructed the jury as requested by the city in its twelfth request. The refusal to do this, and especially in connection with instruction 10 given by the court, was prejudicial error.
We think further that the facts in this case are such that the court should have instructed the jury thåt it was the duty of respondent to pursue the traveled portion of the street, or that part which was worked and prepared by the city for travel, and that if he departed therefrom intentionally or heedlessly or for his own convenience, or for other reasons dependent upon his own volition, he assumed the risk in doing so. It is not the law that a person driving on the streets in all parts of the city may at will depart from the traveled track either by day or night, and if he encounters a natural or artificial obstruction and suffers injury that he may recover damages from the city. (Tasker v. Farmingdale, 85 Me. 523, 27 Atl. 464; Goeltz v. Town of Ashland, 75 Wis. 642, 44 N. W. 770; Marshall v. Ipswich, 110 Mass. 522; Barnes v. Chicopee, 138 Mass. 66, 52 Am. Rep. 259.)
The contention that this court has held to the contrary on any one or more of the foregoing propositions cannot be sustained. These questions were not involved nor discussed in the cases cited by counsel, namely: Tucker v. Salt Lake City, 10 Utah 173, 37 Pac. 261; Scott v. Provo City, 14 Utah 31, 45 Pac. 1005; and Naylor v. Salt Lake City, 9 Utah 491, 35 Pac. 509. The first two cases were cases of defective sidewalks, and the court, in speaking of the width to be maintained, of course referred to the sidewalks which had been opened for travel throughout the whole width thereof, and for that reason ought to have been maintained for that
width. The last case was one where an artificial obstruction was placed in the traveled portion of the street without any guards or signals to warn persons thereof. So far as we know this court has never passed upon the direct questions presented in this case. As we have pointed out, the question of the lack of lights and barriers was raised in the complaint. In submitting the case to the jury the court did not say anything about these matters, but from what was said in the general charge which we have copied the jury may well have inferred that the city was negligent in not putting up a barrier along the bank referred to, or in not placing a signal light as a warning to travelers, and that for that reason if for no other they may have found the street was not in a reasonably safe condition. In this regard the charge was again too general. In view that the case will have to be sent back for a new trial, it is perhaps not improper for us to indicate our views with regard to these issues for the guidance of the court on the second trial. As a general rule the city is not required to put up barriers to prevent travelers from driving off the traveled portions of the streets. Barriers are not required for this purpose. They are generally required only where an obstruction or excavation is placed or made in the traveled part of the street, or where the excavation or dangerous declivity is so near the traveled part of the street that it makes it a dangerous place to pass over. In other words, barriers are intended to make the passageway safe, and not to mark or define its limits so as to warn travelers not to drive outside of them. This is well illustrated by the following cases: Barnes v. Chicopee, 138 Mass. 67, 52 Am. Rep. 259; City of Hannibal v. Campbell, 86 Fed. 298, 30 C. C. A. 63; McIIugh v. St. Paul, 67 Minn. 441, 70 N. W. 5; Tasker v. Farmingdale, 85 Me. 523, 27 Atl. 461; Marshall v. Ipswich, 110 Mass. 522; Goeltz v. Town of Ashland, 75 Wis. 642, 44 N. W. 770. If the city, therefore, opens and prepares only a part of the street for use, and the remaining portion is rough or has obstructions upon it, it is not, as a general rule, the duty of the city to mark the limits of the traveled portion, or to place signals at or near such obstructions to warn travelers. It is the duty of the traveler to remain within the wrought and traveled portion of the street, and if that portion is not reasonably sufficient for public use he may complain upon that ground as we have pointed out above. In this regard it may be said that, where a city maintains a street upon two levels, one considerably higher than the other, and the two are divided by an abrupt declivity, and both levels are opened for travel, then it may be incumbent upon the city to place a barrier along the upper level to prevent accidents in driving over the edge. But this, again, is simply for the purpose of making the drive way reasonably safe, and is well illustrated in the case of Pride aux v. City of Mineral Point, 43 Wis. 513, 28 Am. Rep. 558. In cases, therefore, where a city prepares only a portion of the street, it may be a question of fact as to whether the portion opened for travel is reasonably sufficient. As to whether it is reasonably safe in view of all the surrounding circumstances is always a question of fact. The jury, therefore, should be instructed with regard to the duty of the city in opening and preparing its streets, and when and for
purposes barriers are required, and if, in view of all the circumstances, the street was not reasonably safe without barriers, and the jury so find, then the city would be liable. The jury should be distinctly told that it is not ordinarily the duty of the city to place lights or warning signals, or to put up barriers along the margins of its streets, or to mark or define the wronght or traveled portions of them, and that these are required only to point out obstructions or excavations in the traveled part of the street, or, where the whole street is opened, to point out where they are so that they may be avoided, and further, that if there be an excavation in the margin of the street or so near it that it may be dangerous to any one using the street, then that in all such cases barriers or signals reasonably sufficient to point out the danger or to keep one from driving over the one or falling into the other are usually required. In view of the whole record We are not clear as to whether respondent contends that the city was negligent in not lighting the street properly, or only in not having a light as a signal of warning at the embankment. As to the duty of the city to light its streets generally it may be said that no such duty exists at common law. Unless the duty is imposed by statute or by the city's charter, the failure to put up and maintain lights in the streets generally is not negligence. (Mitchell v. Tell City (Ind. App.), 81 N. E. 594; McHugh v. St. Paul, 67 Minn. 441, 70 N. W. 5, and cases there cited.) The absence of lights may, however, be important upon the question of contributory negligence. To what extent a city may be required to maintain lights in its streets generally in case it voluntarily assumes the duty to light them is a question not now involved, and we express no opinion upon it.
As to when and under what circumstances a city must put up
and maintain signal lights we have already discussed.
Upon the other assignments respecting the refusal of the court to give the other requests offered by the city we are of the opinion that those were sufficiently covered by the court's general instructions. We remark, however, for the benefit of counsel, that about all the requests offered uniformly ended with the request to find for the city. It does not necessarily follow that because an instruction states the law fully and correctly upon one issue the jury should therefore find generally for the plaintiff or the defendant as the case may be. The jury should be told what their findings should be upon that issue only unless the particular issue is decisive of the whole case.
Trial courts very often must refuse, and this court is compelled to sustain the refusal, to give correct statements of the law simply because they end by directing the jury to determine the whole case upon the one request. Nearly all of appellant's requests, ten or twelve in number, end in this way, and the court did not err in refusing them for that reason if for no other.
The contention that the court erred in not permitting witnesses for the city to testify directly that the driveway at the place of the accident was sufficient for public travel is not tenable. All these questions called for the witnesses' conclusions merely. The reasonable sufficiency of the street