was only one specimen of many such obstructions occurring to the common knowledge of all citizens in the streets and highways of this city, and which could be removed by reasonably careful inspection and at a greatly less cost than the amount of any one verdict against the District that has been recovered in any such case. Nevertheless, despite the fact that the negligence of the District has been great and is almost confessed on the record, we can find no difference in principle between this case and that of Brewer v. District of Columbia, upon the authority of which the court below proceeded: See, also, the case of Kelly v. Doody, 116 N. Y. 575.

"In pursuance of the decision in the Brewer case, and leaving the parties to their ultimate appeal to the Supreme Court of the United States, we must affirm, with costs, the judgment of the Supreme Court of the District of Columbia in the premises."

As the rule of law which the court deemed to be applicable was thus stated solely by reference to a prior case which the court had decided, that case must be examined to determine whether the extent of the duty which the court was of opinion rested upon the plaintiff in this case was correctly defined. District of Columbia v. Brewer-the case referred to-was decided in 1895. 7 App. D. C. 113. The case was this: The property owners on Brown street had constructed along a side of that street, where there was no paved sidewalk, a board walk. After the erection of this structure the District of Columbia graded the street, so that the bed of the street was lower than the board sidewalk by about ten inches. When this grading was done, at the request of the property owners the board walk was left undisturbed. One of the residents of the street made a driveway from his premises to the street, cutting out for such purpose a space through the board walk ten feet wide. On a winter night, snow being on the ground, Brewer, the plaintiff in the case, was on his way to his home, which could have been reached by another street than the one on which the board walk was situated. Brewer knew the

situation of the board walk above the grade and the cut through it for the private roadway. As, however, the street upon which the board walk existed was lighted and the other street was not, and as there was less snow on the board walk than in the center of the street, Brewer chose to use the lighted street, and in doing so to walk along the board walk instead of going into the middle of the street. On arriving at the commencement of the board walk he stepped up thereon and on reaching the point where the board walk had been cut for the driveway, he fell and suffered the injury for which he sought compensation. There was a verdict in his favor. The appellate court, after saying that the proof clearly established negligence on the part of the District of Columbia, approached the question of the contributory negligence of the plaintiff. It pointed out that the plaintiff knew of the dangerous condition of the board walk when he chose to go along it, and the magnitude of the risk which was taken by him in using the board walk in the night time with the snow on it was referred to. The court, then, described what took place at the moment when Brewer suffered the fall at the place where the roadway had been cut, and observed (p. 116): "A similar accident might have befallen him had he slipped at any other point and fallen from the raised board walk." This remark would tend to indicate that it was deemed that the board walk from its elevation above the grade with snow on it was equally dangerous at all points to the knowledge of Brewer as it was at the driveway. The statements previously referred to were, however, immediately followed by this:

"But, be that as it may, he deliberately took the risk of walking along this dangerous sidewalk and received his injury in so doing. As this plainly appeared from the testimony of the plaintiff himself, who seems to have testified with perfect fairness, and there was no other evidence, the court should have instructed the jury to return a verdict for the defendant."

From this analysis of the opinion in the Brewer case we find it difficult to say precisely upon what theory the ruling there

made was treated as decisive of this case. We say this for the reason that the conclusion of the court in that case would seem to have been placed upon the very dangerous condition of the street and the extreme hazard arising from its use under the circumstances, thus precluding every reasonable inference that Brewer could, consistently with ordinary prudence, have elected to use the street at the time and under the conditions shown by the undisputed proof. It is insisted, however, that the Brewer case was held by the court below to be applicable to this, because it was deemed that it had been decided in that case that where a defect existed in a highway, and was known to one who elected to use such highway, such election, even if it were justified by the dictates of ordinary prudence, nevertheless must be held, as a matter of law, to entail the consequences of a want of ordinary care and prudence. And this proposition substantially embodies the asserted principle of law which was relied upon at bar as sustaining the judgment below.

We are of the opinion, however, that the rule as thus contended for is unfounded in reason and unsupported by the weight of authority. When analyzed the proposition comes to this, that no person can, as a matter of law, without assuming all the risk, use the streets of a municipality where he knows of a defect therein, even although it be that in the exercise of a sound judgment, it might be deemed that with ordinary care and prudence the street could be used with safety. The result of admitting the doctrine would be to hold that all persons in making use of the public streets assumed all risks possibly to arise from every known defect or danger. That this is the result of the proposition may be aptly illustrated. Take a street across which runs a railroad track, whereon cars are moved by steam or other motive power. All persons knowing of this fact would know also that there was some danger in crossing. They, therefore, must either abstain altogether from crossing, or, if they do so, be subject as a matter of law to the consequence of the reckless operaVOL. CXCI-17

tion of the railway, without reference to the care exercised in the use of the street for the purpose of crossing. Indeed, the proposition would imply that every one who used the public streets with the knowledge of a defect existing therein would be guilty, if an injury was by them suffered as a result of such defect, of contributory negligence without the existence of any neglect whatever; for this would necessarily result from saying that one who had made a careful use of the streets was yet guilty of neglect in doing so. Reduced to its last analysis, the principle contended for but asserts that the ordinary rules by which negligence is to be determined do not apply to the use of the public streets, since those who use such streets with a knowledge of a possible danger to arise from a defect therein must, as a matter of law, have negligence imputed to them, although in choosing to make use of the streets and in the mode of use the fullest possible degree of judgment and care was exercised. The result of this would be to relieve the municipality of all duty and consequent responsibility concerning defects in highways, provided only it chose to give notice of the existence of the defects.

There may undoubtedly be found in some of the adjudged cases, concerning the right to recover for damage suffered from the neglect of a municipality to repair a highway, expressions which lend support to the proposition relied on, and it may be true to say, also, that there are some cases which seem to directly support the contention. But, as we have shown, such a doctrine is inconsistent with reason, and, as we shall now proceed to point out, is in conflict with what we deem to be the weight of authority. In Dewire v. Bailey, 131 Massachusetts, 169, the action was brought to recover from the owner of a building for damages occasioned to one who had fallen on a plank sidewalk, covered with snow and ice, on his way out of the building. The proposition was that the injured person knew of the existence of the snow and ice on the walk, and, therefore, by electing to use it assumed the risk, and was, as a matter of law, conclusively presumed to be deemed guilty

of contributory negligence. In reviewing this contention, the court, through Field, J., said (p. 170):

"The rulings of the justice presiding at the trial all rest upon the proposition that knowledge on the part of the plaintiff, at the time he entered upon the sidewalk, of the accumulation of snow and ice and of the unsafe condition of the sidewalk resulting therefrom, is in law conclusive evidence that he was not in the exercise of due care in attempting to pass over the sidewalk.

"Looney v. McLean, 129 Massachusetts, 33, was an action by a tenant of a part of a building against the landlord to recover for injuries received in consequence of the giving way of one of the steps of a staircase used in common by the tenants, for the safe condition of which the landlord was responsible, and it was held 'that the fact, if proved, that the plaintiff had previous knowledge that the stairs were in a dangerous condition, would not be conclusive evidence that the plaintiff was not in the exercise of due care;' and Whittaker v. West Boylston, 97 Massachusetts, 273, and Reed v. Northfield, 13 Pick. 94, are cited. Other recent cases to the same effect are George v. Haverhill, 110 Massachusetts, 506; Whitford v. Southbridge, 119 Massachusetts, 564; Lyman v. Amherst, 107 Massachusetts, 339; Mahoney v. Metropolitan Railroad, 104 Massachusetts, 73; Thomas v. Western Union Telegraph, 100 Massachusetts, 156; Worden v. New Bedford, ante, 23."

The court further said:

"In Mahoney v. Metropolitan Railroad, ubi supra, it was held 'that the fact that the plaintiff saw the obstruction created by the defendant, and knew its dangerous character, is not conclusive proof that he was negligent in attempting to pass it. A person who, in the lawful use of a highway, meets with an obstacle, may yet proceed if it is consistent with reasonable care so to do; and this is generally a question for the jury, depending upon the nature of the obstruction and all the circumstances surrounding the party. In the case at bar, if the plaintiff had reasonable cause to believe that he could pass the