and for the recovery of damages resulting therefrom. The cause was tried before a jury, who heard all the evidence given therein, a verdict was by them rendered for one hundred dollars damages against the defendant, "and that he be ordered by the court to abate the nuisances complained of by the plaintiff." Thereupon the court made and filed written findings of fact upon all the material issues raised by the pleadings, and rendered its judgment, enjoining the defendant from continuing the nuisances complained of, ordering that the same be abated, and that the plaintiff recover the sum of one hundred dollars damages, and costs. A new trial was moved for by the defendant, and denied, and from the judgment and order made therein this appeal is prosecuted.

Counsel for the defendant contends most earnestly, upon several grounds, that the judgment and order should be reversed, but none of them appear to us to be tenable.

There was no error in the refusal of the court to allow the defendant's counsel to read law books, or to make an argument on the law of the case, or to state what he claimed to be law, to the jury: People v. Anderson, 44 Cal. 70; Proffatt on Jury Trials, sec. 253.

As we have seen, this was an action in equity: People v. Moore, 29 Cal. 428; Courtwright v. B. R. & A. W. & M. Co., 30 Id. 576, 577. An abatement of a nuisance is accomplished by a court of equity by means of an injunction proper and suitable to the facts of each case: Wood on Nuisances, secs. 777-794.

The complaint alleged and the court found that a nuisance existed and was continuous; the answer denied all the material allegations of the complaint. While it is true that the prayer of the pleading above referred to did not expressly ask for the issuance of an injunction, yet it did ask "that said nuisance be abated." The relief granted was consistent with the case made by the complaint, and embraced within the issues made by the pleadings, and was therefore entirely proper: Code Civ. Proc., sec. 580.

There is a substantial conflict in the evidence as to whether the plaintiff was, at the time of the institution of the action, employed by the defendant to remove the "pile of hair and flesh" that constituted a part of the nuisance complained of.

The defendant complains that the court instructed the jury that damages could be recovered against him after the commencement of the action. It appears, however, that the plain

tiff waived all damages for anything that had occurred after the filing of the complaint, and the case being one in equity, the verdict of the jury was merely advisory to the court: Sweetser v. Dobbins, 65 Cal. 529.

The defendant's counsel makes a very strenuous argument that in effect the verdict, judgment, and findings, as he claims, most improperly pronounced the smoke-stack of the defendant to be a nuisance.

The language of the decree or judgment upon that subject is as follows: "It is adjudged and decreed that said defendant is perpetually enjoined from allowing soot to issue from the smoke-stack on the premises," etc.

The findings show that the issuance of this soot from the smoke-stack above mentioned was a nuisance of a most disagreeable character to the plaintiff and his family.

We are not informed from the record but what this smokestack might have been used in such a way, both readily and easily, as that soot would not have issued therefrom. But be that as it may, it is said by this court in the case of Tuebner v. California Street R. R. Co., 66 Cal. 174: "The keeping of a hotel or a restaurant is a lawful and very necessary business, . . . yet it could not be held that a person carrying on such business, or any requiring a large consumption of fuel, could erect his chimney to a height that would discharge the smoke and soot into his neighbor's windows. It is true, as argued by appellant, that persons preferring to live in the city rather than the country must accept many inconveniences, — probably all that flow naturally and necessarily from the concentration of populations; but that doctrine should not be carried too far. The law looks to a medium course to be pursued by each for the mutual benefit of all." Tested by this rule, we do not see why the plaintiff should not be restrained from so using his smoke-stack as that the soot issuing therefrom shall be prevented from being a disturbance, annoyance, and source of positive injury to the defendant and his property.

Nor could the board of supervisors of the city and county of San Francisco grant a license to the defendant which would permit him materially to impair the plaintiff's property rights. They could and did grant the defendant a license to erect and maintain his steam-engine, but they neither could nor did license him thereby to create a nuisance: Tuebner v. California Street R. R. Co., supra.

Upon the whole case, the record of which as well as briefs

of counsel and authorities there cited we have carefully examined, we are of opinion that the judgment and order should be affirmed.

SEARLS, C., and BELCHER, C. C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment and order are affirmed.

JURY TRIAL.-Where the distinct provinces of the court and of the jury are recognized, and the former is held to be the exclusive judge of the law, as the jury are of the facts, it is clearly improper for counsel to argue questions of law to the jury, or to read law books or extracts therefrom in the course of their argument. In the first place, such a course savors of disrespect to the judge on the bench, as it suggests to the jury that there are other exponents of the law to whom they may look in making their decision, and invites them to accept the law as read by the attorney, rather than as set forth in the instructions which the court is to give to them before they retire for deliberation. In the next place, whenever the jury is to be influenced by something which is stated to them and in their presence, as law applicable to the case, it ought to be in the form of instructions to which the opposing party may, if he so wish, reserve an exception. Otherwise, he is without redress, if that which is stated as law is, in truth, not the law at all; or if, though being sound law when properly applied, it is entirely inapplicable to the case under consideration. Besides, the reading of law books in the course of an argument must tend to confuse as well as mislead the jury. It distracts their attention from the facts of the case. The reading of such books may be permitted in the discretion of the court, if pertinent, by way of illustration; but if its apparent object is "to induce the jury to disregard the instructions, or to take the law of the case from the books rather than from the court," it should be checked by the judge, unless perhaps in those cases where the jurors are judges of the law as well as of the facts: Proffatt on Jury Trials, sec. 253; People v. Anderson, 44 Cal. 70.

NUISANCES. - Businesses, though lawful in their nature and of great public or private benefit, must be so conducted as not to constitute nuisances. Otherwise, they will be enjoined. This rule was applied to lead smeltingworks, in Appeal of the Pennsylvania Lead Co., 42 Am. Rep. 534; to slaughterhouses: Pruner v. Pendleton, 40 Id. 738; Minke v. Hofeman, 29 Id. 63; to the operation of a steam-engine: Dettman v. Repp, 33 Id. 325; McKeon v. Lee, 10 Id. 659; to rolling-mills emitting smoke and cinders: Wesson v. Washburn I. Co., 90 Am. Dec. 181; to a blacksmith's shop: Fancher v. Grass, 60 Iowa, 505; Norcross v. Thoms, 81 Am. Dec. 588; to a powder-magazine: Emory v. Hazard Powder Co., 53 Am. Rep. 730; to potteries emitting dense volumes of soot and smoke: Ross v. Butler, 97 Am. Dec. 654, and note. See note to Rouse v. Martin, 51 Am. Rep. 467–475.

BARRY V. TERKILDSEN.

172 CALIFORNIA, 254.]

PLAINTIFF IS NOT GUILTY OF CONTRIBUTORY NEGLIGENCE, because, assuming a sidewalk in a populous city to be safe, she permitted her attention to be momentarily attracted in another direction, and fell into a hole in such sidewalk, from which the covering had been removed.

FACT THAT ACT OF THIRD PERSON MAY HAVE CONTRIBUTED to the final catastrophe will not exonerate a defendant sued for injuries resulting from an act which is unlawful, or is so hazardous as to be in the nature of a nuisance on account of the occasion for accident and injury which it continuously presents to innocent persons. SIDEWALK. — One who maintains a hole in a sidewalk in front of his prem

ises in a populous city, over which is a movable trap-door, is answerable to a person who is injured by falling through such hole at a time when it was open and unguarded, though it is not shown by whom the door was removed and the hole left open and unguarded.

RIGHT TO KEEP OPENINGS IN SIDEWALKS in front of one's premises, if it exists at all, must come from legislative declaration, municipal license, or general usage.

ACTION for damages for injuries suffered from falling through a hole in a sidewalk. Judgment for plaintiff.

F. M. Husted, for the appellant.

J. D. Sullivan and Horace G. Platt, for the respondent.

By Court, MCFARLAND, J. Plaintiff, a girl about nineteen years old, started somewhat in a hurry from her father's house, about nine o'clock in the morning of October 11, 1880, to go to school. Appellant owned the adjoining premises, and in the sidewalk in front of said premises there was a hole covered by a wooden trap-door, which appellant used for his private convenience. This hole was only a few feet from the entrance to the residence of plaintiff's father. On the morning above referred to, this hole was opened, and entirely unguarded and unprotected. As plaintiff went out of the house, her attention was attracted for a moment by some children playing on the street, and not noticing the hole, after taking a couple of steps she fell headlong into it. The hole was quite deep, and plaintiff was very seriously injured by the fall. She had been accustomed to travel over this sidewalk daily on her way to and from school, and never knew before that the hole was there. The premises are on Post Street,a populous street of the city of San Francisco. The evidence did not show who had removed the trap-door from the top of the hole. The jury found a verdict in favor of plaintiff for

three thousand dollars, and defendant appeals from the judgment, and from an order denying a new trial.

Appellant makes many of the points which are usually raised in actions for damages of the class to which the case at bar belongs.

In our opinion, there is nothing in the point that respondent was guilty of contributory negligence. A sidewalk of a street in a city not near a crossing may be taken by one passing over it to be a safe and not a dangerous place. In this case, the respondent had a right to presume that the sidewalk was in the same condition in which she had always found it; and the fact that her attention was momentarily attracted in another direction-a thing of the most common occurrence to travelers along a street- falls far short of that contributory negligence which in law defeats an action for damages.

Most of the other points made by appellant in various forms, when grouped together, present this proposition or theory: that as respondent failed to show that appellant, or any one of his employees or servants, removed the trap-door from the hole, and did not negative the theory that a stranger might have removed it, therefore there is a want of proof of that negligence which is the gist of an action for personal damages.

To this proposition there is a multitude of authorities, more or less applicable; and they are widely divergent. We think, however, that through the numerous cases upon the subject may be seen a distinction which is determinative of the case at bar. When a person pursues a business or does an act perfectly lawful in itself, and not in its nature so hazardous or so conducive to injury as to be of the character of nuisance, then he can be held liable for injuries to others arising therefrom only when he has been guilty of negligence in his manner of carrying on the business or doing the act. But when the act is unlawful, or is in its character so hazardous as to be in the nature of a nuisance on account of the occasion for accident and injury which it continuously presents to innocent persons, then the party is liable, although the agency of a stranger may have contributed to some extent to the final catastrophe. At least, in such a case, the injured party ought not to be compelled to show affirmatively that there was no intervention of a third person which contributed to the result.