sance; and a city, by giving such permit, | averring that the city, in violation of its is not charged with the duty of seeing that the place is guarded, and will not be liable in damages to a person injured in consequence of the omission to guard such place with barriers or lights, unless it had notice, express or implied, of such omission, and after such notice was guilty of negli

RROR to the Circuit Court for Franklin County to review a judgment affirming a judgment of the Court of Common Pleas in plaintiff's favor in an action Special Finding No. 1. Upon what obbrought to recover damages for personal instruction did the plaintiff stumble? Anjuries alleged to have been caused by de-swer: Mortar board. fendant's negligence. Reversed.

error.

Messrs. E. M. Baldridge and F. V. Owen, for defendant in error:

sidewalk before the accident, to whom or Mr. David T. Keating also for plaintiff in through whom had this actual notice been given? Answer: The officer on the district. Special Finding No. 6. If the defendant, the city of Columbus, had, prior to the accident, received actual notice of the thing or obstruction on the sidewalk, over which plaintiff fell or stumbled, how many days prior to the accident had this notice been given or received? Answer: From one to two weeks.

The city moved for a judgment in its favor on the special findings of fact notwithstanding the general verdict, and excepted to the action of the court in overruling the same.

Messrs. James M. Butler, George S. Marshall, and Edgar L. Weinland, for plaintiff

in error:

negligent.

Copeland v. Seattle, 33 Wash. 415, 65 L. R. A. 333, 74 Pac. 582; Groveport v. Bradfield, 2 Ohio C. C. 145, 30 Ohio L. J. 351; Ft. Wayne v. De Witt, 47 Ind. 391; 2 Thomp. Neg. p. 762.

The notice which a city must have, must relate to the particular defect or obstruction which caused the injury.

Dundas v. Lansing, 75 Mich. 499, 5 L. R. A. 143, 13 Am. St. Rep. 457, 42 N. W. 1011; Grand Rapids & I. R. Co. v. Huntley, 38 Mich. 540, 31 Am. Rep. 321; Collins v. Dorchester, 6 Cush. 396; Robinson v. Fitchburg & W. R. Co. 7 Gray, 92; Beach, Pub. Corp. 1522; Carter v. Monticello, 68 Iowa, 178, 26 N. W. 129; Shelby v. Clagett, 46 Ohio St. 549, 5 L. R. A. 606, 22 N. E. 407. Notice to a police officer is not sufficient. Cleveland v. Payne, 72 Ohio St. 347, 70

L. R. A. 841, 74 N. E. 177; Chase v.

The application for, and the granting of, a building permit, was sufficient notice. District of Columbia v. Woodbury, 136 U. S. 464, 34 L. ed. 477, 10 Sup. Ct. Rep. 990; Gable v. Toledo, 16 Ohio C. C. 515; Circleville v. Neuding, 41 Ohio St. 465; Southern Ohio R. Co. v. Morey, 47 Ohio St. 207, 7 L. R. A. 701, 24 N. E. 269; Cleveland v. King, 132 U. S. 295, 33 L. ed. 334, 10 Sup. Ct. Rep. 90; McPherson v. District of Columbia, 7 Mackey, 564; Savannah, v. Donnelly, 71 Ga. 258; Wilson v. Watertown, 5 Thomp. & C. 579; Hewitt v. Cleveland, 21 Ohio C. C. 505; Indianapolis v. Doherty, 71 Ind. 5; Russell v. Columbia, 74 Mo. 480, 41 Am. Rep. 325; Dill. Mun. Corp. § 1027; 5 Thomp. Neg. § 5971; Brown v. Swanton, 69 Vt. 53, 37 Atl. 280.

Summers, J., delivered the opinion of the

court:

The contention on the part of the city may be summarized as: That the special finding is, in effect, that the city had no knowledge or notice other than that of the policeman, and, there being no evidence of any facts tending to prove constructive notice that the mortar board was in a position

to endanger the use of the sidewalk, the city was entitled to a judgment in its favor on the special findings. The circuit court, so it is said by counsel for defendant in error, ruled that notice was not necessary, because it was the duty of the city, having given the permit, to see that proper precautions were taken to prevent accidents, and on the trial in the court of common pleas an ordinance of the city authorizing the granting of permits for such use of the streets, and prescribing the mode of use and the manner of safeguarding the same, was admitted in evidence for the purpose of showing wherein the city had neglected its duty.

That the knowledge of the policeman, or notice to him, does not make the city liable, is ruled in Cleveland v. Payne, 72 Ohio St. 347, 70 L. R. A. 841, 74 N. E. 177, so that the principal question for consideration is

whether, in an action to recover damages for

an un

Cleveland, 44 Ohio St. 515, 58 Am. Rep. 843, personal injuries received from 9 N. E. 225; McGovern v. Mt. Vernon, 1 guarded or unlighted obstruction in a Ohio Sup. Ct. Dec. 54; Columbus v. Ogle-street, it is necessary to prove that the city tree, 96 Ga. 177, 22 S. E. 709; Cook v. Ana- had knowledge or notice, when the city had mosa, 66 Iowa, 427, 23 N. W. 907; Frazier given permission to occupy a part of the v. Butler, 172 Pa. 407, 51 Am. St. Rep. 739, street at the place with material for the 33 Atl. 691; Norman v. Teel, 12 Okla. 69, construction of a building upon the adjacent 69 Pac. 791; Sprague v. Rochester, 88 Hun, property, or, differently stated, whether it 613, 34 N. Y. Supp. 1126; Rich v. Rockland, is the duty of the city, when it gives such 87 Me. 188, 32 Atl. 872. permission, to see that a nuisance is not

V. District of Columbia, 7 Mackey, 564, and Savannah v. Donnelly, 71 Ga. 258, are cases of excavations in the street. In Wilson v. Watertown, 5 Thomp. & C. 579, a railroad company had been authorized by statute to construct its road across a street with the city's assent, and the company was required to restore the street to its former state. The plaintiff sued the city to recover for injuries received from obstructions on the sidewalk, placed there by the railroad company, and was nonsuited on the ground that the statute made it the duty of the company to restore the street, and that this relieved the city of its duty to keep the street safe. The question as to notice was not made, but it is assumed that notice was necessary. On page 581 it is said: "A municipal corporation may not be liable for an injury caused by a nuisance in a street, created without its authority or sanction, of the existence of which it had no notice. But the nonsuit in this case was not put upon that ground, nor does that question arise here, for the reason that there was at least some evidence from which the jury might have been warranted in finding that the defendants had notice of the nuisance which caused the injury to the plaintiff.”

created. In Clark v. Fry, 8 Ohio St. 358, 72 | court in 67 Ohio St. 534, 67 N. E. 1095. Am. Dec. 590, it is ruled: "(1) The right of McPherson transit in the use of the public highways is subject to such incidental, temporary, or partial obstructions as manifest necessity requires; and among these are the temporary impediments necessarily occasioned in the building and repair of houses on lots fronting upon the streets of a city, and in the construction of sewers, cellar drains, etc. These are not invasions, but qualifications, of the right of transit on the public highway; and the limitation on them is that they must not be unnecessarily and unreasonably interposed or prolonged. (2) Such temporary obstructions upon the highway, when guarded with due care to prevent danger to the public, and not unnecessarily extended or continued, are not nuisances, and do not require a license from the municipal authority to legalize them, although suitable regulations by the city authorities, requiring such obstructions to be properly guarded, and to prevent them from being made in an improper manner, or continued unreasonably, are usual and highly proper." If the regulation of such obstructions is highly proper, it would seem unreasonable to hold that a regulation, requiring a permit to be obtained, may be enforced only at the risk of becoming liable in damages for such injuries as may result from its abuse; and strange that such regulation is usual. An examination of the cases will show that it is only when the city is the actor, or in cases of license by the city to do an intrinsically dangerous thing in the street, and not in cases properly of mere regulation, that the city is liable without notice, or is charged with notice by the fact that it gave the permit to do the thing in the street. An ordinance regulating the use of the street for such purposes emanates from the police power of the city, and the granting of the permit under it, or neglect to enforce it's provisions, cannot make it civilly liable to an individual in consequence.

The case of District of Columbia v. Woodbury, 136 U. S. 450, 34 L. ed. 472, 10 Sup. Ct. Rep. 990, arose out of an excavation in the sidewalk. The opinion is by Mr. Justice Harlan. The instructions to the jury on the trial were given by Cox, J., and Mr. Justice Harlan approves of the following principles which he states were covered by the charge: "(3) People must build houses, and, in order to do that, it is necessary to excavate for cellars and areas, if needed, and to dig trenches to connect with the water mains, gas pipes, and sewers. Nobody has a right to do this without a permit from the authorities, and, if any person undertakes to do it without a permit, he would Referring to the cases cited by counsel be responsible for any injury resulting; but for defendant in error, we observe that the District would not be, unless it had the Gable v. Toledo, 16 Ohio C. C. 515, is a case notice already spoken of. If a permit is of permission to make a dangerous excava- granted, as is usually the case, the fact is tion in the street. Circleville v. Neuding, notice to the authorities that the work is in 41 Ohio St. 465, and Southern R. Co. v. progress, and then they are charged with Morey, 47 Ohio St. 207, 7 L. R. A. 701, 24 the duty of seeing that it is properly conN. E. 269, are cases of dangerous excava- ducted. (4) These works are necessarily tions in the street, and are not in point, for dangerous to life and limb, and it is the the reason that the question there decided duty of a person doing the work to protect is that a party causing a dangerous excava- it against accident to travelers on the tion in a street cannot escape liability on street; and the duty of a private person is the ground that the work was done by an very much the same as that of the District independent contractor. The judgment of itself when it is prosecuting an improvethe circuit court in Hewitt v. Cleveland, | ment. If a private individual fails to pro21 Ohio C. C. 505, is reversed, and that of tect the excavation or hole, or whatever it the court of common pleas affirmed, by this may be, it is the duty of the District au

lights should be placed by them at or near materials placed and remaining in the street to warn persons passing along of dangerous obstructions, the city had a right to suppose such lights were so placed in the nighttime. While 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 employed by 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 nighttime. The city is not an insurer of the absolute safety of persons passing along its streets in the nighttime. 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 the city, or the officers or employers 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 nighttime 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."

thorities to see that it is protected, and they | permits to Rosenfeld and Kostering, the are held responsible that he shall do it, for contractor, that in the nighttime sufficient they were notified that he was going on with the work when he obtained his permit. If the individual himself supplies the protection against danger, then the duty will have been discharged on his part, and that of the District also will have been discharged just the same as in the case of the works being constructed by itself. If, then, by any unforeseen accident or the act of somebody that could not be anticipated, the protection has been removed and new danger supervenes, of course the law about notice applies." It is to be noticed that the principles of law there laid down relate to excavations, "works necessarily dangerous." The principles of law given to the jury in Cleveland v. King, 132 U. S. 295, 33 L. ed. 334, 10 Sup. Ct. Rep. 90, a case of obstructions placed in a street for building purposes, are also approved by Mr. Justice Harlan. The charge to the jury in that case was given by Welker, J., and is reported in King v. Cleveland, 28 Fed. 835, and he expressly instructs the jury that the city, notwithstanding it had given permission to occupy a portion of the street with building materials, would not be liable for injuries resulting from a failure to properly barricade or light the obstructions, in the absence of notice; and, furthermore, that the city, having provided in the permit that sufficient lights should be placed to give warning of the obstructions, had the right to act upon the assumption that such lights were there. He said: "Without any permit to do so, owners of lots abutting directly on streets in a city like Cleveland have a right to the use of a reasonable or necessary part of the street on which to deposit building materials in the erection of their buildings, and the city could not prevent them from such reasonable use; but they must comply with reasonable requirements made by the city to provide for the safety of persons using the streets. Having allowed Mr. Rosenfeld and the contractor, by permits granted in the usual way, to use one half of the street on which to deposit necessary building materials, with the provision therein as to proper signals, as stated, and such building materials being in the street at the time the plaintiff alleges he received the injury of which he complains, the question arises, What was the duty of the city in seeing that proper guards and proper lights were placed at or near the material So deposited? The principal negligence complained of by the plaintiff is that, being in the nighttime, 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

These cases, read in the light of the facts, an excavation in the sidewalk, necessarily dangerous, in the one case, and in the other an obstruction in the street, not necessarily dangerous, consisting of building materials, are not in conflict, and the present case being one of an obstruction in the street, not necessarily dangerous, we are not required to determine whether Clark v. Fry, 8 Ohio St. 358, 72 Am. Dec. 590, in so far as it applies to excavations or obstructions necessarily dangerous, is too broad, or whether, in a case of permit to the owner of adjacent property to make an excavation in the street for some lawful purpose incident to the use of his property, it would

2. Where there is evidence tending to show that, had a person killed at a railroad crossing looked in the direction of an approaching train, he would have seen it in time to avoid injury, the question of his negligence must be submitted to the jury under a proper and correct charge. Damages-evidence-inventory of estate.

be the duty of the city to see that a nuisance a traveler on the highway from the duty it not created. To hold that the city may of looking and listening. not grant such a permit without assuming Same-instructions. the duty of seeing that the obstruction is properly guarded with barriers and lights would require the city to exact from the property owner the expense of doing so, which, in many cases, would be a hardship on the property owner and an unreasonable regulation; so that, being of the opinion that a permit by a city to use part of the street for the placing of building materials for use in the construction of a building on the adjacent property is a mere regulation of a right of the property owner to make such use of the street, and not a license to do an act in the street which but for such (Clark, Ch. J., and Connor, J., dissent.) license would be illegal or a nuisance, the city, by giving such permit, is not charged with the duty of seeing that the place is

3. The inventory of the administrator of one killed by negligence is not admissible in evidence upon the question of damages for his death, as tending to show his abili ty to earn and accumulate money.

(December 12, 1905.)

PPEAL by defendant from a judgment guarded, and will not be liable in damages A of the Superior Court for Caswell to a person injured in consequence of the County in plaintiff's favor in an action omission to guard such place with barriers brought to recover damages for the alleged or lights, unless it had notice, express or negligent killing of her intestate. implied, of such omission, and after such versed. notice was guilty of negligence.

The judgments of the Circuit Court and of the Court of Common Pleas are reversed, and judgment is entered for the plaintiff in error upon the special findings.

Statement by Hoke, J.:

Re

Action to recover damages for alleged negligent killing of plaintiff's intestate. The ordinary issues in such actions were submitted. There was evidence of plaintiff

Davis, Ch. J., and Shauck, Price, Crew, tending to show that intestate was killed and Spear, JJ., concur.

NORTH CAROLINA SUPREME COURT.

in attempting to drive his wagon over de-. fendant's road at a public crossing, and by reason of the negligent failure on the part of defendant in giving the ordinary and usual signals at crossings, and that such

MARY W. COOPER, Admrx., etc., of W. negligence was the proximate cause of the

A. Cooper, Deceased,

V.

injury. There was evidence of defendant tending to show that the ordinary and usual

NORTH CAROLINA RAILROAD COM- signals were given, and that the intestate

PANY, Appt.

(N. C. 52 S. E. 932.) Railroad-crossing-negligence of traveler. 1. Failure of a railroad company to give the usual and ordinary signals in approaching a highway crossing does not relieve

Case Note. The rule followed in the case at bar, that the failure of the railroad company to give the customary signals at a highway crossing will not excuse a traveler's omission to look and listen, is one on which the authorities are substantially agreed, both in the jurisdictions where the failure to look and listen is regarded as negligence per se, and where it is regarded as merely evidence tending to establish negligence on the part of the traveler, although there are some cases which hold that the evidentiary value of such omission to look and listen is diminished by the circumstance that the customary signals were not given. The true form which the inqui y should take in cases of this kind is: Could

the plaintiff, by a reasonable use of his senses, have discovered the proximity of the approaching train in time to avoid the accident?

The rule is stated in Thompson on Negligence, vol. 2, § 1582, as follows: "The failure of the railway company to give the proper or statutory signals on approaching the crossing will not exonerate the traveler from making such use of his faculties as he can to discover the approaching train; but he must look and listen." to the same effect, Shearm. & Redf. Neg. 5th ed. § 476; 7 Am. & Eng. Enc. Law, 2d ed. p. 436.

And see,

Among the numerous cases in which this rule has been applied are Schofield v. Chi