in permitting it to remain there. Newport v. Miller (1892) 93 Ky. 22, 18 S. W. 835.

In Lamb v. Cedar Rapids (1899) 108 Iowa, 629, 79 N. W. 366, the court affirmed a judgment against the city for injuries to one while attempting to remove a piano from a dray, caused by falling over a stump in the space along the road; since the city is bound to keep its streets, which have been open to public use, free from defects and obstructions, although that duty extends only to so much of the street as is customarily used by the public.

Evidence sufficient to prove constructive notice to the town of the existence of a stump near the traveled portion of a highway, making it dangerous to travelers, is shown where it appears that the stump had lain in the same place for more than a year prior to the accident, and had been seen by at least one person many times, and that during the fall, winter, and early spring the stump was plainly visible, although in the summer it was almost entirely covered by grass and brambles. Williams v. Allen (1921) — R. I. —, 114 Atl. 138.

And permitting a large stump to be taken out of a sidewalk and rolled into the street several feet outside of the curb, and allowing it to lie there ten days or two weeks without a light or anything to warn travelers at night of its position, constitute gross neglect of duty on the part of the borough authorities, rendering the borough liable for damages for a resulting injury. Trego v. Honeybrook (1894) 160 Pa. 76, 28 Atl. 639. But where the top of a tree is cut off to enable an elevated railway to pass

over it, and the remaining stump became became decayed and was thrown down by a blow from a heavy truck, and a person was injured thereby, the city cannot be held liable for the injury if the appearance and condition of the street were not such as to indicate insecurity to persons of ordinary observation, care, and prudence; the duty of the city in respect to the tree being reasonable care and prudence. Gu

basko v. New York (1888) 14 Daly,

559, 1 N. Y. Supp. 215.

Whether a stump in the traveled way of a street in a city constituted a defect which the city ought to have removed is properly submitted to the jury in an action for injury resulting therefrom. Lamb v. Cedar Rapids (1899) 108 Iowa, 629, 79 N. W. 366.

Also, whether a stump which was 3 or 4 inches within the curbing of a street, and but 2 feet high and 22 inches in diameter, which a person stumbled on in a dark night, when the nearest lamp was 130 feet distant, was an obstruction rendering the public use of the sidewalk inconvenient and unsafe, is a question for the jury in an action for the injury. Newport v. Miller (1892) 93 Ky. 22, 18 S. W. 835.

In Wheeler v. Latonia (1913) Tex. Civ. App. -, 155 S. W. 951, judgment for a city in an action for injuries caused by running into a stump on the edge of the traveled portion of a highway, which had been set aside as a sidewalk although not actually laid out as a sidewalk, was affirmed, since it was shown that there was a plain traveled way in the street, of ample width for the use of all kinds of vehicles, and entirely safe and free from obstructions; and further, that the party injured drove out of this traveled way and onto the sidewalk for his own convenience. In rendering its decision, the court called attention to the fact that, although denominated a city, the defendant in this case was only a small town with limited revenue, and said that such places are not held to as strict accountability as to the condition of its roads as are larger places with greater revenues, especially, as in this case, as to streets sparsely settled and very little traveled.

And in Olmsted V. Greenfield (1914) 155 Wis. 452, 144 N. W. 987, a verdict finding one whose automobile was damaged by striking a stump guilty of contributory negligence was held not to be without evidence to support it, where the evidence tended to show that, in the

center of a traveled sidetrack of a country road, there was an oak stump 10 inches high, partially concealed by green oak sprouts about 2 feet high and by weeds, but visible to one approaching from the west for a distance of 50 to 75 feet, and the plaintiff, going east in an automobile at the rate of 12 miles per hour, left the traveled track and took the sidetrack, and the under part of his automobile struck the stump and was damaged.

g. Roots.

The loose and rotten root of a tree which had stood in a sidewalk for over sixty years is a defect in the highway, and a city is liable by statute for injury to a pedestrian caused by tripping over such root. Nestor v. Fall River (1903) 183 Mass. 265, 67 N. E. 248. See also Rose v. Slough (1918) 92 N. J. L. 233, L.R.A.1918F, 813, 104 Atl. 194, infra, II.

A pedestrian is negligent as a matter of law, who, upon a clear day, with nothing to obstruct her vision, stumbles over a place in a sidewalk where one paving stone is, by roots of

a

tree growing under it, raised

4 inches above the adjoining paving stone, of which fact she has knowledge. Kennedy v. Philadelphia (1908) 220 Pa. 273, 17 L.R.A. (N.S.) 194, 69 Atl. 748.

And in Covington v. Manwaring (1902) 113 Ky. 592, 68 S. W. 625, a city was held not to be liable to one who was injured by stumbling on a brick in the sidewalk which had been raised by roots of a tree, since he was charged with notice of the defective condition of the sidewalk.

II. Liability of abutting owner. See Blackwell v. Hill (1898) 76 Mo. App. 46, supra, I. b; Newport v. Miller (1892) 93 Ky. 22, 18 S. W. 835, supra, I. f.

Where a city, by authority of its charter, maintains shade trees on the sidewalk, the owner or occupant of a lot is not impliedly bound to trim them, or liable for injury to a passer-by by the fall of a neglected rotten limb. Weller v. McCormick (1885) 47 N. J. L. 397, 54 Am. Rep.

175, 1 Atl. 516. And see the reported case (ZACHARIAS v. NESBITT, ante, 1016).

The owner of property abutting on a sidewalk upon which stands a tree, of which, under legislative authority, the municipality has assumed control, is not liable for injury to a pedestrian caused by tripping over a paving block raised by the root of the tree growing beneath it. Rose v. Slough (1918) 92 N. J. L. 233, L.R.A.1918F, 813, 104 Atl. 194.

But, in the absence of statutory or municipal regulations to the contrary, a tree planted by a private person on a sidewalk in front of his premises is under his control. Weller v. MeCormick (1890) 52 N. J. L. 470, 8 L.R.A. 798, 19 Atl. 1101. The owner of the premises must use reasonable care to prevent the tree from becoming dangerous to travelers upon the street, and, for failure to do so, is liable to private action in favor of one injured thereby. Ibid.

And in the absence of notice that the public claims to own or exercise any control over a tree on a sidewalk, the owner of the premises, who is in the actual occupation of them, is chargeable with knowledge of his exclusive proprietorship, and the duties which it entails, although the tree was there when he bought the premises. Ibid.

An owner of premises who permits another to fell a tree standing on his premises within a few feet of the highway is liable, if the tree is so negligently cut that it falls across the highway, for injuries to a traveler as a result of the obstruction; and this although the owner's consent was upon the condition that the tree should not be felled across the highway. Nagle v. Brown (1881) 37 Ohio St. 7. The court stated that the condition attached to the consent that it should not be felled into the road did not exonerate the abutting owner from blame, since it was his duty to the public to see that the condition was performed, and if those to whom he gave authority to cut the tree did not remove it from the road, it was his duty to remove it.

(184 Cal. 390, to be in writing under the Statute of Frauds?

As to the first question, the sufficiency of the evidence to sustain the finding mentioned, there was direct evidence as to the making of a promise by the defendant. It also appears clearly that the promise when made was intended intended to be to be contractual in character; that is, was intended as the definite assumption of an obligation by the defendant in case it were accepted by the plaintiff. According to the evidence, the defendant, in the spring of 1916, called on the president of the plaintiff, stated that he was the president and principal stockholder of the Interstate Vaccine Company, endeavored to persuade the president of the plaintiff to have its hogs vaccinated by that company, and in that connection stated that, if his company were employed to do this, he personally would guarantee the immunity of the hogs from cholera for the balance of their natural lives, and would pay the value of any that might subsequently die of cholera. If this proposal had been accepted then and there by the plaintiff by the employment of the vaccine company, there could be no doubt as to the existence of the contract or as to the sufficiency of the evidence to sustain the finding that there was a contract. The only doubt in the matter arises from the fact that the vaccine company was not employed at that time, was not in fact employed until the following fall. Then the plaintiff, through the local agent of the company and without any further dealings with the defendant, employed the vaccine company, and the hogs were vaccinated. The question on this branch of the case, therefore, is as to whether or not this employment can be related back to the defendant's promise of some months before. The defendant's statement to the president of the plaintiff was, of course, a proposal which had to be accepted within such time as the parties contemplated it would remain open, and, in the absence of any express understanding upon the point, within such

193 Pac. 947.)

time as it could be taken they reasonably had in mind under all the circumstances of the case. If nothing appeared other than that the defendant had made the proposal in the spring, and the plaintiff, months later, had employed the vaccine company to vaccinate its hogs, it might well be taken that the employment of the vaccine company was an entirely new matter, not relating back in any manner to the conversation of the previous spring, so that if the defendant were to be held liable it would have to be on some new promise made at that time. But, according to the testimony for the plaintiff, which must be accepted in view of the court's findings, the further facts were that the conversation between the defendant and the plaintiff's president in the spring ended with the statement by the latter that he would keep in touch with the defendant and would call upon him when the plaintiff was ready to vaccinate. It also appears that during the summer the local agent for the vaccine company who had been present at the original interview between the plaintiff's president and the defendant, and had heard the latter's statement with regard to the guaranty, called upon the plaintiff's president, and was informed that when the plaintiff was ready to vaccinate it would call upon him, and the guaranty was again spoken of as an inducing reason for the plaintiff to employ the vaccine company. This evidence is sufficient to justify the conclu

Evidence-con

sion, implied in tract-sufficiency. the court's findings,

that it was understood that the defendant's proposal that he would guarantee the immunity of the hogs if the plaintiff employed the vaccine company remained open until the plaintiff actually came to vaccinate and employed the vaccine company for that purpose, and that the employment was upon an understanding of which the guaranty of some months before was a part. This conclusion is strengthened by evidence that the following spring, when the defend