sence of it is not proximate cause of the accident. (Judd v. Claremont, 66 N. H. 416; Patchen v. Walter, 45 N. Y. S. 145.)

A city is not liable for failure to maintain barriers when the horse leaves a traveled road which is in good condition, and wide enough to drive upon with safety, through any cause for which the municipality is not responsible. (Bell v. Wayne, 123 Mich. 386, 82 N. W. 216; Springs v. St. Clair, 56 N. W. 18.)

The mere absence of a barrier upon the side of a highway where there is a perpendicular descent when the road is hard and smooth is not enough to charge negligence. (Glaker v. Helm, 82 Hun 311; Lane v. Hancock, 142 N. Y. 510; Miller v. Hebron, 39 N. Y. S. 381.)

A city is not liable for negligence for not erecting a barrier when the place to be guarded is twenty-five feet or more from the traveled part of the road. (Hannibal v. Campbell, 86 Fed. 297; Marshall v. Ipswich, 100 Mass. 523; McHugh v. St. Paul, 67 Minn. 441; Murphy v. Gloucester, 105 Mass. 470.)

RESPONDENT'S POINTS.

The following authorities support the proposition that it is the city's duty to keep the entire width of a public street in a reasonably safe condition for public travel by night as well as by day. (Tucker v. Salt Lake City, 10 Utah 173; Scott v. Provo, 14 Utah 31; City v. Swisher, 85 Pac. 1110; Stafford v. City, 64 Iowa 251; Crystal v. City, 65 Iowa 502; Niblett v. Nashville, 59 Tenn. 684; 15 A. & E. Ency of Law, 454. 1 Thompson on Negligence, Vol. 5, secs. 6005-6012. Prideaux v. Mineral Point, 43 Wis. 513. Elliott on Roads and Streets, page 455.)

FRICK, J.

This is an action for damages for personal injuries claimed to have been caused by an alleged defect in one of the streets of Salt Lake City. The negligent acts complained of are alleged to be substantially as follows: (1) Negligence

in maintaining a "dugway" in the intersection of Twelfth East and Second South streets in such manner as to cause an embankment to form from three to five feet in height, which was allowed to remain diagonally across the intersection of said streets; (2) the failure of the city to construct and maintain a railing or barrier along the traveled part of said intersection and said embankment "to prevent persons and vehicles on said traveled part from passing over said bank," and (3) the failure of the city to place and maintain a light or other signal at or near said embankment to warn persons using the street of the existence thereof. Briefly stated, the facts developed at the trial were substantially as follows: Second South street runs east and west, and Twelfth East street runs north and south. These two streets intersect or cross each other in the eastern part of the city, and within a block or two from the easterly limits of the city. At the point where these two streets meet and cross is a natural bluff running in a northeasterly and southwesterly direc tion. This bluff is of considerable height, and rises abruptly forming a sort of bench. The natural topography of the land both above and below this bluff is comparatively level, inclining somewhat to the west. These two streets meeting, as they do, at the point where this bluff parts the lower from the upper level, made both streets practically impassable in the natural state of the ground. The bluff was worked down somewhat, and in doing so it left a somewhat steep incline to the north on Twelfth East street, and to the west on Second South street. Both of these streets are 132 feet wide between lot lines, and have been platted and surveyed for many years. In order to make the streets passable the city made a roadway on the east side of Twelfth East street going up the hill to the south, and also one on the west side of this street. On Second South street a roadway was prepared on the north side of that street, and in doing so the south side of this roadway was cut down somewhat, and it is this that is called the "dugway" in the complaint, and the raise caused by this cut is called the "embankment" or "bank." This work left a portion of the centers of both streets in an unfit condition for

travel, the principal part of which fell within the intersection, and was lengthened out somewhat to the north and west of the intersection, so that this unwrought portion of these two streets at the point aforesaid resembled somewhat the form of a boot or stocking tapering to a point at both extremities. By reason of the declivity at the point in question the city, in making a passage or driveway on the north side of Second South street going east, caused the embankment or bank, as stated above, to be formed along the south margin of the traveled portion of the street, which, the testimony shows, was from two to three feet high, descending somewhat abruptly from the top of the embankment to the worked and traveled portion of the street. These drive or passage ways around this unworked portion, as the testimony discloses, were all the way from twenty to thirty feet in width, and all were reasonably smooth and passable for teams and vehicles. It also appears that the travel at that point was not very heavy, and that the city both to the south and east of the intersection was somewhat sparsely settled. In view of the foregoing, in going either up or down the hill, a person driving over this intersection, in order to continue on in the driveway prepared by the city, would have to drive either to the right or left in passing around the unworked portion lying in the center of the intersection of these two streets. The unworked portion had no well-defined banks along its upper or eastern and southern margin, but on the lower part there was more or less of a bank, as above stated. In the center of the intersection, and upon the unworked portion thereof, stood an electric light pole with an arc lamp upon its top. The pole and light were the same as those used for lighting all parts of the city. At the time of the accident there were some weeds on the unworked part of the intersection which had grown up during the preceding summer and fall. The electric light was lit, but made a dim light, as some of the witnesses described it. Under the conditions above described, on October 31, 1905, the respondent, at about 6:15 o'clock p. m., in making the turn west on the intersection of Twelfth East street to drive west on Second South street

with a team and heavy carriage, departed from the traveled part of the street or intersection and drove diagonally across the unworked part, and in doing so one of the front wheels of the carriage went over the embankment forming the north margin of the unworked part of the street, and threw him from the seat, and he fell to the driveway below and was injured. Just before driving north he had driven. south over this intersection, but, as the night was dark, he said he had not noticed the actual condition of the street, and in going back, in order to relieve his horses somewhat from the pressure of the carriage, respondent says: "I made a wide turn to go down easy, and as I came to the slant of the hill I got too far over. I didn't make a sharp turn, because I was afraid the team would get away from me down the hill." It is thus reasonably clear that respondent, instead of turning west along the worked part of the street, drove off the driveway and drove onto and across the unworked portion, and thus encountered the bank which was along the south margin of the northerly driveway, and in going over this bank was thrown from the carriage seat and injured. Mr. Zerbe, a witness for respondent, was with him on the driver's seat at the time, and he testified that he could see that respondent was driving off the traveled part of the street, but did not see the bank ahead of them. There was no other light or signal excepting the arc lamp on the pole described above, nor was there any barrier along the bank, or other sign of warning. The jury returned a verdict for the respondent upon which the court entered judgment, and the city presents the record for review on appeal.

While the errors assigned are numerous, we shall discuss such only as we deem material. In submitting the case to the jury the court gave the following instruction, which was duly excepted to by the city; and the giving of it is now urged as error: "(10) You are instructed that the defendant is required to use ordinary care to keep its streets in a reasonably safe condition for travel in the ordinary modes by night as well as day, and whether they are so or not is a question of fact to be determined in each case by its par

ticular circumstances." As a modification of the foregoing instruction, the city offered a request whereby it asked that the court instruct the jury in substance that the city was not required to improve or make passable the whole width of the intersection, or the whole width of the two streets; that it was only required to improve and make passable such portion of said streets and intersection as was reasonably necessary for the needs of the public; and that it was the duty of the city to exercise ordinary care to keep in a reasonably safe condition for passage and travel such parts of the streets only as had been improved and opened for travel, if such portion was reasonably sufficient for the needs of the public using these streets. The court refused the request, and the duty of the city in respect to its streets is limited in the instructions to what is contained in the instruction copied above. The instruction given, and the refusal to instruct as requested, or to so instruct in substance, present the principal question discussed by counsel.

Counsel for respondent insist that appellant is not in a position to raise the question, because respondent in his complaint alleged that the city "was charged with the duty of maintaining the said streets in a safe and fit condition for public usage and travel," which allegation the city admitted in its answer. This contention is not tenable. The allegation at most is a mere conclusion of law, and could have been stricken from the complaint, and the city is not bound by the admission of such an allegation. (1 Bates Pl. & Pr. 233.) While the instruction correctly states an abstract proposition of law applicable to a street, the whole width of which has been opened and worked for public use and travel, it is wholly inapplicable to the facts as developed in this case. The statement respecting the duty of the city with regard to maintaining its streets is so general that to a jury of laymen it practically afforded no information or guide whatever under the facts and circumstances developed at the trial. Such general statements, as was said in City of Guthrie v. Swan, 3 Okl. 116, 41 Pac. 84, are misleading in that the jurors will naturally assume that it was the duty of the city to make and