alley to the street. The duty arose from the power to superintend the street. If the excavation be bridged by a volunteer and the city allow it to remain for years, it adopts it.

The plaintiff was injured at a bridge by the removal of planks by an unknown person, and ample time had elapsed since the removal to make the fact notorious, and the city was not entitled to actual notice thereof. Requa v. Rochester, 45 N. Y. 129, aff'g judg't for pl'ff.

A culvert in Sixth avenue was formerly covered by two iron plates; one was destroyed, and somebody placed a stone over the dangerous hole, where it remained for some months. The plaintiff fell into the hole in the dark, and a recovery for injuries was sustained, although the court seemed to think the case was like Requa v. City of Rochester, 45 N. Y. 129, but there was no exception to raise the question. Ploedterll v. Mayor &c., 55 N. Y. 666, aff'g judg't for pl'ff.

See Griffin v. Mayor, 9 N. Y. 456.

If the abutting owner, without permission, makes an excavation and the municipality knew of it, the latter is liable.

Plaintiff, in the evening, while driving along one of defendant's streets, drove into a trench and was injured. The trench had been dug before May first by the owner of a lot adjoining the street, without permission of the village authorities. The excavation was left with slabs laid across it, with boxes and a barrel thereon, and sometimes a light was placed there. The night of the accident was dark; the street lamps were not lighted, and there was no light at the excavation. The street was the principal thoroughfare of the village. Several of the village trustees had knowledge of the excavation some days before the accident. Plaintiff was familiar with the street, and had seen the excavation several times prior to the accident.

The facts justified the findings, charging defendant with notice of the existence of the excavation, and with negligence in not abating the nuisance, or so guarding it as to prevent accident. The question of contributory negligence was one of fact. Weed v. Ballston Spa., 76 N. Y.

329, aff'g judg't for pl'ff.

Batty v. Duxbury, 14 Vt. 155; Murphy v. Gloucester, 165 Mass. 410. The plaintiff stepped through a hole four or five inches wide by ten or twelve inches long in a plank walk or bridge over a gutter. The side and cross walks had been built by the property owners under the authority of chap. 61, Laws 1850, chap. 93, Laws 1863, chap. 233, Laws 1881. The road-bed was in good condition. The failure of the officials of the town to discover the defect in the bridge did not establish negligence. Clapper v. Waterford, 131 N. Y. 382, rev'g judg't for pl'ff.

The plaintiff brought her suit to recover damages from the defendant,

AND REASONABLE DILIGENCE IN REPAIRING AFTER NOTICE OF THE DEFECT.

the city of Lockport, for injuries received on account of a crosswalk in that city, which was allowed to remain in an unsafe condition for about a year, and plainly observable by all who passed it. Hines v. Lockport, 5 Lansing, 16, rev'g nonsuit.

Commissioners of highways must use active foresight and constant vigilance to keep bridges in repair, and a reasonable degree of watchfulness, from time to time, to ascertain condition and prevent damage. Mere omission to receive notice of defect will not exculpate them. Bostwick v. Barlow, 14 Hun, 177, aff'g judg't for pl'ff.

A horse stepped through a hole in a hedge made by the absence of a plank. No proof of why or how long the plank had been gone, of defendant's knowledge of it, etc. Herrington v. Phænix, 41 Hun, 270, rev'g judg't for pl'ff.

From opinion.-" The plaintiff says that the horse stepped on the docking, which was rotten, and his foot went through. We do not understand that all of the docking on the south side gave way, or that the foot went through the docking; but infer that the upper surface of the top timber was rotten, and that a piece crumbled out and let the foot down by the side of the docking. It also appears, inferentially, that the plank of the bridge had covered the docking, but on the occasion in question, the south or first plank was gone, leaving the dock exposed, and also an uncovered space between the docking and the second plank, into which the horse's foot slipped from the docking.

There is no evidence that the bridge was defective in design or construction; it was not shown how, when or by whom the plank was displaced. For aught that appears, it might have been displaced by a trespasser, or accidentally by the last team crossing the bridge before the accident. The plaintiff lived in the village near the bridge, but does not claim to have discovered the defect before the accident. The age of the bridge was not shown, nor were any facts tending to establish negligence on the part of defendant's officers, except that at the time of the accident a plank was displaced, and that the top timber of the docking was rotten, but to what extent does not appear."

A municipality ordering an improvement, which must obstruct the highway, is liable, without notice, for failure of contractor to provide suitable safeguards. A bridge was authorized to be built and maintained By two counties; both were liable for failure to erect barriers in either county.

Held, that as the very nature of the improvement which the city and county undertook to make, involved danger to persons lawfully on the highway, who might approach the bridge at night and attempt to cross it, they were bound to see that proper safeguards were provided while the work was going on, so as to afford reasonable protection to the public, and that the court erred in charging that the city had a right to presume, in the absence of notice, that the contractor had properly guarded the approach to the bridge, and was not liable, without either express or

constructive notice, for the negligence of the contractor, and that, in the absence of actual or express notice, it must appear that the neglect on the part of the contractor had continued for so long a period that the authorities could be charged, under the circumstances, with notice of the condition of affairs. Hawxhurst v. Mayor &c., 43 Hun, 588, rev'g judg't for def't.

Following Storrs v. City of Utica, 17 N. Y. 104; Dressell v. City of Kingston, 32 Hun, 533; Brusso v. City of Buffalo, 90 N. Y. 679, and distinguishing Reed v. The Mayor, 31 Hun, 313.

Presence of a pile of earth in street for three or four days was constructive notice. Briel v. Buffalo, 90 Hun, 93.

Otherwise, where the dirt was not all placed in the pile at once. ley v. St. Louis, 149 Mo. 122.

Bag

Likewise, as to a truck left in the street on a particular night not left there habitually. Farley v. New York, 9 App. Div. 536.

Existence of a hole from three to five feet wide, one to two and onehalf feet long and one foot deep for a month in much used street, was constructive notice. Smith v. New York, 17 App. Div. 438.

So, as to existence of a sluiceway 2 or 3 feet wide, 12 to 21⁄2 deep, along a road, for years. Rankert v. Junius, 25 App. Div. 470.

So, as to encroachment of a telegraph pole for a year or more. Fisher v. Mt. Vernon, 41 App. Div. 293.

Otherwise, though a rut existed for two weeks, where it did not present an appearance of danger. Osterhout v. Bethlehem, 55 App. Div. 198.

Presence of a timber in a street for several months was constructive notice. Murphy v. Seneca Falls, 57 App. Div. 438.

To collect and hold water for city purposes, a tank, sunk several feet below and elevated three feet above grade, was placed upon a street, and was so insecurely protected that boy of four passing along the street slipped and fell in and was drowned. City claimed that some unknown and unauthorized person tore off covering, of which it had not notice. A long and unreasonable delay in repairing the tank would justify the jurors in presuming that the city had been notified of its defects and was negligent in omitting to repair it. Chicago v. Moyer, 18 Ill. 349, aff'g recovery.

Notice was not presumed where the city's officers failed to discover the alleged defect upon examination for that purpose after the accident. Williams v. Carterville, 97 Ill. App. 160.

A " long time" was a sufficient allegation to charge constructive notice. Mt. Vernon v. Hoehn, 22 Ind. App. 282.

Dean v. Sharon, 72 Conn. 667; Frazier v. Butler, 172 Pa. St. 407, ("long continued, conspicuous and noticeable").

AND REASONABLE DILIGENCE IN REPAIRING AFTER NOTICE OF THE DEFECT.

The existence of a broken electric light wire in the street for three weeks was sufficient. Kansas City v. File, 60 Kan. 157.

Existence for number of years was long enough to raise a presumption of notice. Junction City v. Blades, 1 Kan. App. 85.

Proof was insufficient which did not show how long the defect existed. Parker v. Boston, 175 Mass. 501.

Existence of a ditch a foot wide and six or eight inches deep for several months was constructive notice. Aiken v. Philadelphia, 9 Pa. Super. Ct.

541.

A city which by its charter is given control of its streets, etc., is liable in damages to any one injured by reason of failure to repair the same. Notice of defects is presumed where the defects are visible. Klein v. Dallas, 71 Tex. 280.

So where improvements are being made although under contract. Wilter v. St. Paul, 40 Minn. 460.

Existence of a cavity in a sewer 10 or 12 feet long for two months, was constructive notice. Dallas v. McAllister, (Tex. Civ. App.) 39 S. W. Rep. 173.

City is chargeable with notice where the defect has existed a long enough time to enable city with reasonable care to discover it. Lorence v. Ellensburgh, 13 Wash. 341.

See, also, Allen v. East Buffalo, 22 Pa. Co. Ct. 346; Carroll v. Allen, 20 R. I. 541; Brown v. Mt. Holley, 69 Vt. 364.

General bad condition in the vicinity was admissible on issue of notice. Conrad v. Ellington, 104 Wis. 367.

What constitutes reasonable diligence in repairing:

The plaintiff, on September 5th, was injured by the washout of the highway on August 23d, on which day the commissioner sent word to the overseer of highways to fix it, which he did on September 7th. Verdict for plaintiff sustained; because the statute made it the duty of the overseer to do the work, it is none the less the duty of the commissioner to see that his orders for doing it are carried out. Farman v. Ellington, 46 Hun, 41.

City must have a reasonable opportunity after notice in which to repair. Smith v. Walker, 117 Mich. 14; Natchez v. Shields, 74 Miss. 871. Denver v. Moewes, 15 Colo. App. 28.

Burden is on the city to show lack of it. Covington v. Diehl, (Ky.) 59 S. W. Rep. 492.

But failure to repair within such time is negligence. Dillon v. Raleigh, 124 N. C. 184.

CONTRIBUTORY NEGLIGENCE.

Ottersbach v.

Long continued neglect, after notice, to repair a leak in a street gas main, gives action to one injured by it against a city. Philadelphia, 161 Pa. St. 111.

6. CONTRIBUTORY NEGLIGENCE.

Right to rely upon presumption that street is reasonably safe:

A traveler on foot in a street, night or day, may assume that the crossings and also other parts of the street are in a safe condition. The municipality is not excused from its duty to see that an excavation in the street is guarded because it has employed a contractor to do the work. Brusso v. City of Buffalo, 90 N. Y. 679, aff'g judg't for pl'ff.

Chapter 700, Laws 1881, charging town with damages by reason of negligence of highway commissioners is constitutional. If the bridge be apparently safe a traveler may assume, ordinarily, that it is in repair. Character and weight of vehicle, and load, etc., should be taken into consideration in crossing a bridge, and may require care. The declaration of a commissioner of highways made the summer before the accident, that he must repair the bridge, is competent. Bidwell v. Town of Murray, 40 Hun, 190, aff'g judg't for pl'ff.

From opinion.-"The duty was with the commissioner of highways of the town, to use ordinary care to keep the bridges in the town in suitable repair for the purposes of the public travel over them, if he had the funds or the means of obtaining them for such purpose, and for failure in that respect, he is chargeable with negligence, and liable if injuries result occasioned by such neglect to parties lawfully passing over them, without fault on their part. Hover v. Barkhoof, 44 N. Y. 113; Bryan v. Landon, 3 Hun, 500; s. c., 5 T. & C. 594. And this is an active duty of the commissioners, in so far that they are required to use active diligence to ascertain the situation of the bridges and highways of their respective towns, and although they do not have actual notice of defective condition, they may be chargeable with notice of the defects which would have come to their observation by the use of reasonable diligence. Bostwick v. Barlow, 14 Hun, 177; Todd v. Troy, 61 N. Y. 506; McCarthy v. Syracuse, 46 id. 194.

The towns, as such, are mere civil divisions, except so far as they are invested by statute with corporate powers. They possess no corporate power in respect to the highways. And the highway commissioners are public officers, and as such have the entire care of the construction and repair of the highways, and at common law the towns are in no manner chargeable with the consequences to individuals of their neglect or misconduct in their management of the highways within the town. Morey v. Town of Newfane, 8 Barb. 645; Lorillard v. Town of Munroe, 11 N. Y. 392; People ex rel. Van Keuren v. Town Auditors, 74 id. 310; People ex rel. Loomis v. Town Auditors, 75 id. 316; People ex rel. Everett v. Supervisors, 93 id. 397."