Statement of the Case.

necessary, namely, more than one-half of its width, and to remain and continue on the above day and during the nighttime of that day, unprotected and unguarded, without a sufficient number of lights, or in such a manner as to be distinctly seen by those using the street. It was further alleged that, in consequence of such carelessness, negligence and improper conduct on the part of the city, the plaintiff, while lawfully passing in a buggy along Bank Street in the night-time, was, by reason of said dirt, sand, rubbish, stones, boxes and other materials in the street, overturned with great force and violently thrown upon the street, whereby, and without fault or negligence upon his part, one of his legs was broken, and he was otherwise permanently injured and disabled.

The answer of the city put in issue all the material averments of the petition, and, in addition, alleged that if the plaintiff was injured, it was due to his own negligence, and not because of any want of care on the part of the defendant.

At the trial the plaintiff was permitted, against the defendant's objection, to read in evidence two sections of certain ordinances of the city relating to the placing in the streets of material for building purposes. They are as follows:

"SEC. 4. No person shall place or cause to be placed on any street, lane, alley or public ground any material for building purposes without the written permission of the board of city improvements. Such permission shall specify the portion of the sidewalk and street to be used and the period of said use, which shall not exceed two months, and in no case shall any person use more than one-half of the sidewalk and half of the street. The council may at any time revoke such license. At the expiration of the permission or on the revocation of it said persons shall remove said material from the street."

"SEC. 14. Whenever any person or persons, whether contractor or proprietor, shall be engaged in the erection or repairing of any building or other structure whatever within the city, and shall cause or permit any building materials, rubbish or other thing to be placed on any public street, lane, alley or sidewalk, or other place in the city where persons pass and repass; and whenever any person or persons who shall be en

Statement of the Case.

gaged in constructing any sewer or laying any gas, water or other pipes or conductors in or through any of the streets, lanes, alleys, highways, sidewalks or other places in the city where persons pass and repass, whether by appointment of the city or its agents, or as contractor, it shall be the duty of all such persons to protect, with a sufficient number of lights, the materials, rubbish, goods, wares and merchandise, heaps, piles, excavation or other things so caused or permitted by them to be or remain in or at any of the places above mentioned, and in such manner as to be distinctly seen by all passers-by, and to continue all such lights from dusk until daylight during every night while any obstructions of the above-mentioned description are allowed to remain in or at such places; and every person who shall neglect the duty imposed by this section shall, in addition to the penalty imposed by this chapter, be liable for all damages to persons and property growing out of such neglect."

He was also permitted against the defendant's objection, to read in evidence two permits given by the city, through its board of improvements, one to E. Rosenfeld, dated July 16, 1879, and the other to Frank Kostering, dated September 19, 1879; each permit authorizing the person named therein to occupy one-half of the sidewalk and one-third in width of the street in front of the premises owned by Rosenfeld, during a period of sixty days from the date of the permit, for the purpose of placing building materials thereon, subject, however, to the provisions of the ordinance requiring that such materials be protected "with a sufficient number of lights, from dusk until daylight, during every day that the same shall remain," and to the condition that the person neglecting that duty should be liable to the penalty imposed by the ordinance, and for all damages to person or property growing out of such neglect.

There was evidence before the jury tending to show that when the plaintiff was passing on Bank Street about seven o'clock in the evening of November 12, 1879, the buggy in which he was riding ran against a mortar-box placed by Kostering in the street, and used by him for purposes of building on Rosenfeld's premises, and was overturned, whereby he was

thrown violently to

Statement of the Case.

the street, and seriously and permanently injured in his body. There was also evidence tending to show that the obstructions placed in the street by Kostering were not indicated by lights or signals, so as to give warning to persons passing in vehicles; that a greater width of street was occupied by these building materials than was justified by the permits granted by the board of improvements; and that the failure of the plaintiff and of the person driving the buggy in which he was riding, to see the mortar-box in time to avoid running against it, was not due to any want of care upon the part of either, but to the absence of signals or lights upon the box.

There was evidence on behalf of the city tending to show that the plaintiff and the person with whom he was riding might, with reasonable diligence, have seen the mortar-box before the buggy came in contact with it; also that a proper light was placed on the mortar-box about dark of the evening when the accident in question occurred.

The charge to the jury was very full, covering every possible aspect of the evidence, and sufficiently indicating the legal propositions which, in the judgment of the court below, were applicable to the case.

Among other things, the court said: "The plaintiff had the right to the use of the street, in going from the hotel to the depot, unobstructed and free from danger, but subject, however, to such incidental, temporary or partial obstructions as are necessarily occasioned in the building or repair of houses fronting upon the streets over which he passed; but in using the street he must exercise reasonable and ordinary care to avoid obstructions, if any be found thereon. In the nighttime he had the right to suppose, in the absence of signals of danger, that the street was not dangerously obstructed or dangerous to pass over; but in passing over it he must exercise ordinary care and prudence to avoid any dangerous obstructions, both in the observation of obstructions, their locality and character, and the speed used in passing along the street. If any obstructions attracted his attention, he should be more careful to avoid any others that might be in the street and

Statement of the Case.

near the same, or if he knew that there were building materials located in the street in front of a new building, in driving along he must exercise reasonable care to avoid running upon any such obstructions. The city had a right to allow Rosenfeld to use a reasonable part of the street for the purpose of depositing therein building materials with which to erect his building, and the same could rightfully be used by Mr. Kostering, the builder or contractor, for that purpose."

Again: "The principal negligence complained of by the plaintiff is that, being in the night-time, no lights were placed at or near the materials, sufficient to warn him of danger as he passed along the street. Having provided in the permits to Rosenfeld and Kostering, the contractor, that in the nighttime sufficient lights should be placed by them at or near materials placed and remaining in the street to warn persons passing along there of dangerous obstructions, the city had a right to suppose such lights were so placed in the night-time. Whilst it was the general duty of the city to keep its streets in safe condition for the use of persons passing over the same, and liable for injuries caused by its neglect or omission to keep them in repair and reasonably safe, yet, in such a case, the basis of the action being negligence, it is not liable for an injury resulting from such negligence unless it had notice or knowledge of the defect that caused the injury before it was sustained: or, in the absence of express or direct notice, such notice or knowledge may be inferred from facts and circumstances showing that such want of proper lights to denote dangerous obstructions existed for a sufficient period of time and in such a public and notorious manner as that the officers representing the city, or those in the employment of the city for the purpose of removing obstructions in the city, in the exercise of ordinary care and diligence, ought to have known of such want of proper guards in the night-time.

"The city is not an insurer of the absolute safety of persons passing along its streets in the night-time. It is only required to exercise ordinary care for such safety, and in judging of what would be ordinary care you are to take into account the great number of streets and their mileage contained in the city. If

Opinion of the Court.

the city, or the officers or employés representing it, had such notice or knowledge, direct or implied, as I have stated, then it was its duty to see that proper lights in the night-time were placed at or near the obstructions, such as would be sufficient to warn persons of reasonable and ordinary prudence of the presence of such obstructions, and, failing to do so, it would be liable for injuries resulting from such failure."

Mr. Allan T. Brinsmade, for plaintiff in error, submitted on his brief, citing: Frazer v. Lewiston, 76 Maine, 531; Hewison v. New Haven, 34 Conn. 136; Hewison v. New Haven, 37 Conn. 475; Hill v. Boston, 122 Mass. 344; Chase v. Cleveland, 44 Ohio St. 505; Robinson v. Greenville, 42 Ohio St. 625; Medical College v. Cleveland, 12 Ohio St. 375; Clark v. Fry, 8 Ohio St. 358; Allegheny v. Zimmerman, 95 Penn. St. 287; Everett v. Marquette, 53 Michigan, 450; St. Paul v. Gilfillan, 36 Minnesota, 298; Norristown v. Fitzpatrick, 94 Penn. St. 121; Campbell v. Montgomery, 53 Alabama, 527; Lafayette v. Timberlake, 88 Indiana, 330; Altvater v. Baltimore, 31 Maryland, 462; Sinclair v. Baltimore, 59 Maryland, 592; Bartlett v. Kittery, 68 Maine, 358; Farrall v. Oldtown, 69 Maine, 72; Smyth v. Bangor, 72 Maine, 249; Joliet v. Seward, 86 Illinois, 402; Hume v. New York City, 47 N. Y. 639; Warsaw v. Dunlap, 112 Indiana, 576.

Mr. E. K. Wilcox, (with whom was Mr. Richard Bacon,) for defendant in error cited: Campbell v. Montgomery, 53 Alabama, 527; Barnes v. District of Columbia, 91 U. S. 540; Medical College v. Cleveland, 12 Ohio St. 375; Robinson v. Greenville, 42 Ohio St. 625; Cardington v. Fredericks, 46 Ohio St. (not yet reported); Boucher v. New Haven, 40 Connecticut, 456; Reed v. Northfield, 13 Pick. 94; Manchester v. Hartford, 30 Connecticut, 118; Storrs v. Utica, 17 N. Y. 104; Buffalo v. Holloway, 3 Selden (7 N. Y.) 493; Baltimore v. O'Donnell, 53 Maryland, 110; Detroit v. Corey, 9 Michigan, 164; Child v. Boston, 4 Allen, 41.

MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.