R. H. Tomlinson, of Lancaster, for appel- [ after it had passed the excavation some 10 lant. feet.

Louis L. Walker, of Lancaster, for appel

lee.

CARROLL, C. J. Hubert Broaddus, a young boy, received serious injuries when an automobile in which he was riding in company with other people on one of the streets of the city of Lancaster, turned over, and in a suit to recover damages there was a judgment in his favor, and the city appeals.

It further appears by practically undisputed evidence that outside of the part of the street covered with metal the ground was covered with grass and weeds, which had also been allowed to grow up in the excavation to such an extent that the excavation could not be discovered by the exercise of ordinary care by a traveler on the street. In other words, the excavation was completely hidden from view by the weeds and grass, and presented the same appearance as did the re

covered part. It is further shown without dispute that there was no barrier or other object to give notice of the presence of this excavation, and that it had been in the same condition it was when the accident happened for several years, certainly more than one year.

The machine in which the boy was riding was being driven by Joe Turner, an experi-mainder of the street outside of the metal enced and careful driver. When the machine was going at a speed of about 10 miles an hour-not exceeding 12-Turner discovered an approaching wagon, and for the purpose of avoiding it turned his machine to his right, according to the law of the road, so that he might pass the wagon. About the time Turner turned his machine to the right the driver of the wagon also properly turned his team to his right, so that each could pass the other with safety.

The macadam and traveled part of the street at this point was, as we have said, about 15 feet wide, and the vehicles, without either leaving the macadam or traveled part of the street, could have passed each other with entire safety, and so if the driver of the automobile had not left the traveled part of the street the accident would not have

The traveled part of the street at and near the point where both vehicles were turned by the drivers to the right, and at the place where they passed each other, was covered for about 15 feet in width with rock. With-happened. in a few feet of the place where the two vehicles passed each other there was a culvert under the street, covered with rock for the same width and in the same manner as the other part of the street.

On the side of the street to which the automobile turned to pass the wagon there was an opening in the culvert, into which the water passed under the street, and at this opening, or mouth, of the culvert an excavation had been made between 2 and 3 feet deep and about 3 feet wide. This excavation was immediately at the edge or in the margin of the macadam and traveled part of the street, so that if the wheels of a vehicle should leave the macadam or traveled part of the street at this point as much as two or three inches they would drop into the excavation that had been made at the mouth of the culvert.

The street was about 22 feet wide, although only about 15 feet of it was covered, as we have said, with metal; outside of the metal part of the street the surface of the ground for some distance from the excavation was level with the surface of the macadam part of the street, or so nearly so that the wheels on one side of a vehicle could run on the metal and the wheels on the other side on the ground outside of it with safety. When the driver of the automobile turned it to the right for the purpose stated, the wheels on the right side of it left the metal part of the street a few inches, with the reIsult that when the excavation was reached one of the wheels on the right of the machine fell into it, causing the machine to turn over

On these facts it is earnestly insisted by counsel for the city that the accident and resulted injury to the boy was entirely due to the negligence of the driver of the machine in leaving that part of the street covered with metal, because, as argued, he could have safely passed the other vehicles without leaving the traveled portion of the street, and therefore the city was not guilty of any negligence in leaving this unprotected excavation immediately by the side of and in the margin of the metal covered part of the street.

For the boy, the argument is that the city was negligent in failing to have a barrier or other reasonably sufficient object to give warning of the fact that it would be dangerous to leave the macadam part of the street at this point, and the driver of the machine was not negligent in leaving for the space he did the traveled part of the street.

We may also here say that there is no dispute about the fact that the city had notice of the location and condition of the excavation a sufficient length of time before the accident to have taken such steps as might be necessary to give warning of its presence.

[1] It is the settled law in this state, and for that matter everywhere, that cities are under a duty to exercise ordinary care to keep their streets in reasonably safe condition for public travel; and it is not to be doubted that if this excavation had been in the metal covered and traveled part of the street the negligence of the city would be clearly established.

Therefore the only material question is, Ir

(216 S.W.)

a city under a duty to exercise ordinary care (tah, 117 Minn. 170, 134 N. W. 639, 38 L. R. A. to keep its streets reasonably safe for public (N. S.) 1127, Ann. Cas. 1913C, 1311, and note; travel outside of that part that is covered Smith v. City of Rexburg, 24 Idaho, 176, 132 with metal and usually traveled when the Pac. 1153, Ann. Cas. 1915B, 276; Carlin v. metal covered and safe part of the street is City of Chicago, 262 Ill. 564, 104 N. E. 905, wide enough to accommodate the traffic and Ann. Cas. 1915B, 213. See, also, Thompson permit two vehicles to pass each other with on Negligence, vol. 5, § 6008. safety.

As a general rule, cities and towns are under a duty to exercise ordinary care to keep the whole of the street, no matter how wide it is or what part of it is used by the public, in reasonably safe condition for travel. But whether this rule should be applied in all its strictness to the whole of the street in small cities and towns is a question that admits of considerable doubt. Perkins v. Inhabitants, of Fayette, 68 Me. 152, 28 Am. Rep. 84; McArthur v. City of Saginaw, 58 Mich. 357, 25 N. W. 313, 55 Am. Rep. 687; Monongahela City v. Fischer, 111 Pa. 9, 2 Atl. 87, 56 Am. Rep. 241.

[2] Of course if the population and business of the city and the reasonable needs of the traffic require the whole of the street, then the whole of it must be kept in condition to accommodate the traffic. But we have in this state a great many small cities and towns with a population ranging from 200 to 1,000 people, and it is a matter of common knowledge that the streets in these municipalities are often wider than is necessary for the safe and convenient use of the traveling public, and that the area of these municipalities is much greater than their business necessities require.

As a result of this condition it is a custom in many of these smaller cities and towns to set apart and keep in a reasonably safe condition for public travel a strip from 15 to 30 feet wide, covered with metal in the center of the street, while the remainder of the street outside of the macadam is seldom used by travelers, and not often maintained in as good condition as the traveled part.

In view of this almost universal custom existing in so many small cities and towns in the state, including Lancaster, and the great expense that would attend the improvement of the whole of all the streets, we do not feel like laying down an arbitrary rule that would require all these small cities and towns to keep in the same safe condition the whole width of all their streets as they do that portion that has been set apart for the use of the traveling public, and that is sufficient to accommodate it.

Cases illustrating the difference in the measure of duty a city is under in respect to the safety of streets that are in the populous and much-traveled part of the city and the streets that are in the outlying and sparcely settled territory are: City of Henderson v. Sandefur, 11 Bush, 550; Neff v. Covington Stone & Sand Co., 108 Ky. 457, 55 S. W. 697, 56 S. W. 723; Sundell v. Village of Tin

[3] But, passing the question as to the duty of small cities and towns to keep whole of all the streets in reasonably safe condition for travel, we are quite sure that, however small the population of the town or city may bè, it is under a duty to exercise ordinary care to keep, not only that part of its streets that has been set apart for and is customarily used by the traveling public in a reasonably safe condition, but that it must also exercise the same degree of care with respect to such parts of its streets as lie immediately adjacent to or in the margin of the traveled part.

It often happens that the driver of a vehicle in an emergency, or in passing other vehicles, and while exercising ordinary care for his own safety, leaves for a short distance the usually traveled part of the street, and when he does so, if there is no warning of the danger and the physical appearance outside of the traveled part does not give notice that it is unsafe, he cannot be said to be guilty of such contributory negligence as would defeat a recovery if he is injured by dropping into an excavation or coming in contact with a dangerous obstruction in the margin of the beaten path that could not be discovered by the exercise of ordinary care on his part. We need not in this case say how close to the traveled road the dangerous excavation or obstruction must be to fix liability on the city. Each case must stand on its own facts.

As said in Warner v. Holyoke, 112 Mass. 362:

"The law has nowhere undertaken to define at what distance in feet or inches a dangerous place must be from the highway, in order to cease to be in close proximity to it. It must necessarily be a practical question, to be decided by the good sense and experience of the jury."

In commenting on this Vermont court said, in Drew v. Town of Sutton, 55 Vt. 586, 45 Am. Rep. 644, that

"It seems to us that this is the only practical rule that can be adopted, and that, as a general rule, it is for the jury to say, in the concrete case, whether the place is sufficiently near the

highway to render traveling upon it unsafe unless guarded against.

[4] Here the driver of the automobile, who was proceeding at a reasonable rate of speed, thought it prudent and safe in passing the wagon to leave for a few inches the traveled part of the street, although it was not necessary that he should have done so, and when he did the wheels of his vehicle drop

ped into an excavation, the presence of which was so concealed by weeds and grass as that it could not be discovered by a person using ordinary care as was the driver of this automobile.

A traveler under circumstances like these is not guilty of negligence as a matter of law. The most prudent drivers of machines and other vehicles are likely at times to deviate slightly, even when there is no occasion,

The instructions are criticized, but we think they presented fairly the law of the case. The judgment is affirmed.

(186 Ky. 188)

TACKITT v. NEWSOM (two cases).

from the beaten path of travel, and, if they (Court of Appeals of Kentucky. Dec. 5, 1919.) do, the question whether they are negligent or not is one for the jury.

We have examined the authorities relied on by counsel for the city, but they do not present facts so similar to those appearing in this case as to make them controlling.

The rule generally followed by the courts is laid down in Thompson on Negligence, vol. 5, § 6055, as follows:

1. APPEAL AND ERROR 242(4)-REVIEW OF ANSWER OF WITNESS WHERE OBJECTION IS WAIVED.

Court on appeal will not consider alleged error in admission of evidence, where objection to answer of witness was waived by not requiring court to rule upon it.

2. APPEAL AND ERROR 882(9)-REVIEW OF

TESTIMONY CALLED FOR ON
PARTY'S CROSS-EXAMINATION.

COMPLAINING

A party cannot complain on appeal of testimony which his counsel voluntarily called for in his cross-examination of witness. 3. APPEAL AND ERROR

"Another exception to the rule which limits the obligation of the municipality to repair to the traveled path, and one resting not only on sound principle, but on authority, arises where there are excavations, chasms, precipices, or obstructions outside the traveled path, and so near thereto that, combining with the ordinary accidents of travel, they are liable to result in injury to the traveler, especially in the nighttime. Here reason and justice demand that the corporation shall remove the ob-4. struction, or protect the traveler from it by suitable barriers or signals, or pay any resulting damages. To make a distinction between cases where the excavation is within the true line of the highway or exactly upon it, and

1058(1)-CURING OF

ERROR IN EXCLUDING TESTIMONY.

Error in exclusion of testimony offered by defendant was cured by subsequent admission of same testimony.

APPEAL AND ERROR 1068(5)

OF INSTRUCTION HARMLESS ERROR.

REFUSAL

Refusal to give defendant's requested instruction on champerty was harmless, where plaintiff by the verdict did not recover any of the land to which the instruction on champerty was intended to refer.

179(4)—

5. WATERS AND WATER COURSES OBSTRUCTION OF FLOW OF WATER; INSUFFICIENT TO JUSTIFY MANDATORY INJUNCTION.

In action for mandatory injunction to re

cases where it is beyond it, but close to it, presents an unworthy refinement and a judicial trifling with human life. The existence of such dangerous places, although outside the traveled portion of the highway, or even outside the highway itself, may so endanger public travel, unless suitable guards or barriers are erect-quire adjoining owner to remove obstruction ed, as to raise a duty on the part of the municipality to erect such guards or barriers along the margin of the traveled portion of the highway, or even along the external portion of the highway as laid out, so that if a traveler is injured in consequence of a want of such barriers, he may have an action for damages against the municipality, although the injury in fact took place outside the limits of the traveled path.

Supporting this text are the following cases: Biggs v. Huntington, 32 W. Va. 55, 9 S. E. 51; James v. Trustees of Wellston, 18

Okl. 56, 90 Pac. 100, 13 L. R. A. (N. S.) 1219, 11 Ann. Cas. 938; Blankenship v. King County, 68 Wash. 84, 122 Pac. 616, 40 L. R. A. (N. S.) 182; Johnson v. Paducah Laundry Co., 122 Ky. 369, 92 S. W. 330, 5 L. R. A. (N. S.) 733; Braatz v. City of Fargo, 19 N. D. 538, 125 N. W. 1042 (1910), 27 L. R. A. (N. S.) 1169; Elam v. City of Mt. Sterling, 132 Ky. 657, 117 S. W. 250, 20 L. R. A. (N. S.) 512; St. Louis R. R. Co. v. Ray (Okl.) 165 Pac. 129, L. R. A. 1918A, 843.

of flow of water in stream, where evidence
showed that natural location of stream was on
plaintiff's side of line, and that defendant had
merely placed five or six rocks on bank of
stream, where it was cutting into his land, to
prevent it from further encroaching upon him,
and failed to show that defendant's act caused
additional water to flow on plaintiff's land,
judgment granting injunction held against the
great preponderance of the evidence.
6. APPEAL AND ERROR

CHANCELLOR'S FINDINGS.

1009(3)—REVIEW OF

If the conflict in the testimony produced only a doubt in the minds of the Court of Appeals, it would be court's duty to resolve the doubt in favor of chancellor's finding, but if the finding is clearly against the preponderance of the testimony, it is the court's duty to determine the matter according to their convictions as to the facts which the testimony as an entirety establishes.

Appeals from Circuit Court, Pike County. Suits by William Newsom against Harvey Tackitt. Judgment for plaintiff, and defend

(216 S.W.)

ant appeals, the two appeals being heard to- The two tracts of land owned respectively gether. Judgment in first case affirmed, and by plaintiff and defendant were once owned that in second case reversed, with directions. as one tract by William Tackitt, who sold the Roscoe Vanover, of Pikeville, for appellant. portion now owned by defendant to his remote J. J. Moore, of Pikeville, for appellee. vendor in 1886, while the remainder of the tract was sold to defendant's remote vendor in 1893.

THOMAS, J. These two suits furnish a The grounds urged for a reversal of the strong example of the perversity in human nature, and emphasize the influence of sel- judgment in the first appeal are that the fishness and greed as factors in controlling court erred in the admission and rejection of human conduct. These litigants not only evidence, in the giving and refusing of indisplay an utter disregard of the good fellow-structions, and that the verdict of the jury ship which should exist between neighbors, is not sustained by the evidence. The only but they likewise exhibit a contempt for the complained of incompetent evidence to which preservation of family ties, since the appellant Newsom, who was plaintiff below, is the son-in-law of the appellee Tackitt, who was the defendant below. It is to be regretted that petty disputes like those here involved could not be settled amicably without consuming the time of courts and disturbing an entire neighborhood for a period of more than a year, and leaving scars which naught but death will efface. The transcripts in the two cases contain about 640 pages, while the matter involved is only a fraction of an acre of mountain agricultural land and alleged damages thereto, all of the total value of less than one-fourth of the cost of the transcripts alone.

The first suit involves a controversy over the division line between the plaintiff and defendant and damages to less than a fourth of an acre of plaintiff's land, because of an alleged wrongful diversion of a stream by defendant, causing the water to collect on that portion of plaintiff's land.

The answer contained a denial of the allegations of the petition and a paragraph relying on adverse possession, which was denied by reply, and upon trial there was a verdict in favor of plaintiff for only a portion of the land sued for, and one also in his favor for the sum of $25 because of the matters complained of in the second paragraph of his petition. Defendant's motion for a new trial having been overruled, he prose cutes an appeal.

About four months after the rendition of the judgment in that case the second suit was filed to obtain a mandatory injunction against defendant, requiring him to remove the alleged obstruction which plaintiff claimed produced the damage for which he asked compensation in the second paragraph of the first suit. Defendant's answer denied the allegations of the petition in that suit, and after extensive and protracted preparation the court upon submission granted the prayer of the petition, and ordered the obstructions complained of removed, and to review that judgment the defendant prosecutes the second appeal above. Upon motion made in this court the two appeals are heard together, though sustaining no relation the one to the other further than that they are between the same parties.

our attention is called in brief of counsel is that given upon cross-examination of the county surveyor of Pike county, who was introduced as a witness in behalf of plaintiff. This witness had made a survey of the lines contended by each litigant as the true one, and had testified in substance in his examination in chief that the calls of defendant's deed (which was the older one) located the true line at the points contended by plaintiff. One call in the deed reads, "running down said point to the butt or base of the 2 point." On cross-examination the surveyor testified that he construed this to mean as running with the center of the point. His first answer, giving his construction of the call, was objected to, but the objection was not acted upon, and then defendant's attorney asked him this question, "It means that whether it says it or not?" to which the witness answered, "Yes, unless it calls for something down on the side of the point or certain degree off to a certain object." Counsel then moved to exclude that answer, which was overruled.

[1, 2] It will at once be seen that the first answer of the witness, of which complaint is made, cannot be considered, because the objection to it was waived by not requiring the court to rule upon it, and his second answer, which was asked to be excluded, was in direct response to a question propounded by defendant's counsel, and we know of no rule of practice permitting a litigant to complain of testimony which his counsel voluntarily called for in his examination of the witness. We do not mean to hold that, if the answer of a witness is not responsive to the question, and is not one which the question was designed to elicit, the party would be barred from complaining of it if erroneous, but we have no such case before us. So, if the testimony of the surveyor was erroneous (which we do not determine), defendant under the condition of the record cannot complain of it. [3] The wrongfully excluded evidence complained of is that offered by two of defendant's witnesses, to whom it is alleged William Tackitt, about the time or just after he sold the land now owned by defendant, pointed out a certain poplar tree as being the poplar tree mentioned in defendant's deed, but this error, if one, was cured by the statements of witnesses who testified for

Defendant offered an instruction directing the jury to find for him if it believed that the land in controversy was included in the boundary given in defendant's deed, which is the same boundary as that contained in the deed to the same tract which William Tackitt executed in 1886. This phase of the case, however, was submitted in another instruction given by the court, and which told the jury to find for the defendant if it believed the description in his deed covered the land to the green line on the map used on the trial, and the green line referred to in the instruction is shown, not only by the defendant himself, but by all his witnesses, to be at the point where he claims the true line is and as contained in his deed.

defendant later upon the trial, and who said ƒ natural location of the stream is on plaintiff's that William Tackitt pointed out to them side of the line as located by the verdict of the line between plaintiff and defendant, and the jury. As far back as the memory of the that the line so pointed out ran by the poplar oldest inhabitant extends there was a natural tree, where defendant claims the true line pond on plaintiff's side of the line, covering to be. | one-eighth or one-fourth of an acre, and in times of heavy freshets the water from the stream would spread out over the land of both plaintiff and defendant. Some years ago a tenant of defendant's vendor dug a small ditch in an effort to take care of the overflow water on défendant's land. Afterward that ditch was dammed up at its mouth, but whether this was done by some owner of the land, or by deposits from the flow of the water, is not made clear by the testimony. It does appear, however, that defendant, where the stream makes a turn around the base of the point, placed five or six rocks on the bank of the creek where it was cutting into his land, to prevent it from further encroaching upon him, and it is these obstructions of which the plaintiff complains. The testimony shows that the natural pond, which was originally upon plaintiff's land, has gradually filled, and that it is now tillable land, this change being brought about by sudden freshets, called by the witnesses "runouts from the mountains," and causing the stream to fill up and the water to spread out over the adjacent territory. We do not gather from the testimony that defendant placed any rocks across the stream so as to interfere with the flow of the water, but that he placed them only on the bank of the stream, to prevent the water from encroaching upon him, and the testimony in the record fails to convince us that this act of his caused any additional water to flow on plaintiff's land. We therefore conclude that the judgment of the court granting the injunction in the second suit was against the great preponderance of the testimony.

[4] Further complaint is made that the court refused to give an instruction on champerty offered by defendant, but the error, if any, in refusing this instruction is not prejudicial, since plaintiff by the verdict of the jury did not recover any of the land to which the instruction on champerty was intended to

refer.

The last contention, that the verdict is not sustained by the evidence, is without merit. We deem it unnecessary to relate even in substance the testimony offered by the respective parties, since it would serve no useful purpose, and would unnecessarily lengthen this opinion. While the testimony in its entirety is conflicting, still that given by plaintiff and his witnesses, including the county surveyor, is abundantly sufficient to sustain the verdict. We therefore conclude that none of the errors relied on are sufficient to authorize a reversal of the judgment in the first case appealed from.

[5] Upon the trial of the second case above, which sought the mandatory injunction referred to, the stenographer's transcript of the testimony heard upon the trial of the first case was read, and in addition thereto the defendant introduced and read the depositions of 11 witnesses. The testimony as a whole upon the trial of that case showed that a small stream known as Big branch, ran out of the mountains and emptied into Long fork of Shelby creek, and that at a point about 200 yards from where it emptied into that stream it made a sudden turn around the base of the point; that from there on to the place of emptying it ran through a low, swampy territory and in the general direction of the line between plaintiff and defendant, and the great preponderance of the testimony is to the effect that the

[6] Under the well-known rule of practice prevailing in this court, if the conflict in the testimony produced only a doubt in our mind as to the truth of the issue, it would be our duty to resolve that doubt in favor of the finding of the chancellor, but if his finding is clearly against the preponderance of the testimony, we not only have the right, but it is our duty, to determine the matter according to our convictions as to the facts which the testimony as an entirety establish. Following this rule, we are constrained to hold that the petition in the second case should have been dismissed.

It is therefore ordered that the judgment in the first case be affirmed, and that the one in the second case be reversed, with directions to dismiss the petition, with a judgment against plaintiff for costs and for proceedings not inconsistent herewith.