obstruction in safety, and used reasonable care in the attempt, he is entitled to recover.'

"It is evident that an obstruction may be of such a character that a court can say, as a matter of law, that no person in the exercise of reasonable prudence would attempt to pass over it; but the accumulation of snow and ice, such as is described in the exceptions in this case, does not in our opinion constitute such an obstruction.

"We think the law in a case of this kind is, that only when the nature of the obstruction is such that the court can say that it is not consistent with reasonable prudence and care that any person having knowledge of the obstruction should proceed to pass over it in the manner attempted, can the court rule that such knowledge prevents the plaintiff from maintaining his action; and that the nature of the obstruction in this case, as shown by the exceptions, was such that it ought to have been submitted to the jury to determine whether the plaintiff, even if he knew the condition of the sidewalk at the time he attempted to pass over it, was, under the circumstances, in the exercise of reasonable prudence and due care in attempting to pass over it in the manner he did."

And the principle announced in the cases just referred to was substantially reiterated in Pomeroy v. Westfield, 154 Massachusetts, 462; Fitzgerald v. Conn. River Paper Co., 155 Massachusetts, 155; Coffin v. Palmer, 162 Massachusetts, 192, and Shipley v. Procter, 177 Massachusetts, 498.

Although in New York the burden in negligence cases is cast upon the plaintiff to show affirmatively his observance of due care, the rule for determining the existence of contributory negligence is like that which was declared in the Massachusetts cases just cited. In Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459, the damage sued for was occasioned by a fall sustained in attempting to pass over an embankment of snow and ice which had accumulated upon the sidewalk. The defendant requested the court in effect to charge the jury that if the plaintiff saw the obstruction and chose to attempt

to pass over it and not go around it, she could not recover. The action of the trial judge in refusing to give such instruction was approved by the Court of Appeals, that court saying (p. 469):

"The charge of the judge sufficiently laid down the rule of law as to plaintiff's contributory negligence, and it would not have been proper for the judge to charge as matter of law that it was negligence for the plaintiff, under the circumstances disclosed in this case, to attempt to pass over the embankment. Evans v. City of Utica, supra; Brusso v. City of Buffalo, 90 N. Y. 679; McGuire v. Spence, 91 N. Y. 303; Bullock v. Mayor &c., 99 N. Y. 654."

The case just referred to was approved and followed in Shook v. City of Cohoes, 108 N. Y. 648. And, also, in Weston v. City of Troy, 139 N. Y. 281, it was declared by the court:

"If she" (the plaintiff) "discovered the ridge, she was not required to leave the sidewalk, but she might, without being subjected to the charge of negligence, using due care, have kept on her way. But she could not heedlessly disregard the precaution which the obvious situation suggested, and proceed as though the sidewalk was free and unobstructed."

Quite recently, in a case decided October 6, 1903, and not yet officially reported, Walsh v. Central New York Telephone & Telegraph Co., 68 N. E. Rep. 146, the doctrine of the previous cases was recognized and applied.

The cases which are stated in the margin' enforce, in sub

1 ALABAMA-City Counsel of Montgomery v. Wright, 72 Alabama, 411; Birmingham v. Starr, 112 Alabama, 98. GEORGIA-Samples v. City of Atlanta, 95 Georgia, 110. ILLINOIS-City of Sandwich v. Dolan, 141 Illinois, 430. INDIANA-City of Columbus v. Strassner, 124 Indiana, 482; Bedford v. Neal, 143 Indiana, 425; Pittsburgh &c. Ry. Co. v. Seivers, not yet officially reported, 67 N. E. Rep. 680. Iowa-Nichols v. Incorporated Town of Laurens, 96 Iowa, 388; Graham v. Town of Oxford, 105 Iowa, 705. KANSAS— Maultby v. Leavenworth, 28 Kansas, 745; City of Emporia v. Schmidling, 33 Kansas, 485; Langan v. Atchison, 35 Kansas, 318; Kinsley v. Morse, 40 Kansas, 577. MARYLAND-County Commissioners v. Broudwaters, 69 Maryland, 533. MICHIGAN-Harris v. Township of Clinton, 64 Michigan, 447; Dundas v. City of Lansing, 75 Michigan, 499; Germaine v. Muskegon, 105

stance, the principle enunciated in the Massachusetts and New York cases just referred to.

We take from a few of those cases some pertinent passages. In Gerdes v. Christopher &c. Foundry Co., 124 Missouri, 347, the rule was thus tersely stated:

"It is the duty of a traveller on a public street to exercise reasonable care; but it is held that the use of a street known to be defective or obstructed cannot be charged as negligence in law."

In City of Sandwich v. Dolan, 141 Illinois, 430, the principle was thus stated:

"These instructions were properly refused. They announce, in substance, the proposition that, where a party goes upon a sidewalk which he knows to be in a dangerous condition, he is thereby guilty of negligence per se. Such is not the law. City of Sandwich v. Dolan, 133 Illinois, 177; City of Flora v. Naney, 136 Illinois, 45; Bridge Co. v. Miller [Ill. Sup.], 138 Illinois, 465. The use of a sidewalk with knowledge of its dangerous condition may be evidence of negligence, but it is not negligence as a matter of law. Bridge Co. v. Miller, supra. In City of Bloomington v. Chamberlain, 104 Illinois, 268, an instruction was held to be erroneous which told the jury that 'the law required the plaintiff to go out into the street, and pass around the walk, if she knew it was defective.' Whether it is obligatory upon the plaintiff to pass over the walk known by her to be unsafe, or to pass around it upon the street, or to take the walk on the opposite side of the street, was a question which it was not the province of the court to determine as a matter of law. It is a question of fact for the jury whether, in passing over a walk known to be dangerous, instead of

Michigan, 213. MINNESOTA-McKensie v. City of Northfield, 30 Minnesota, 456. MISSOURI-Maus v. City of Springfield, 101 Missouri, 613; Cohn v. City of Kansas, 108 Missouri, 387; Gerdes v. Christopher &c. Foundry Co., 124 Missouri, 347; Beauvais v. City of St. Louis, 169 Missouri, 500, and cases cited. VERMONT-Coates v. Canaan, 51 Vermont, 131, 137. WASHINGTON -Jordan v. City of Seattle, not yet officially reported, 66 Pac. Rep. 114.

taking some other route, the plaintiff is or is not in the exercise of ordinary care. City of Sandwich v. Dolan, supra."

In Graham v. Town of Oxford, 105 Iowa, 705, 709, the court said:

"It is not true that one who knows of a defect in walk is necessarily guilty of negligence if he attempt to pass over it. Much depends upon the character of the defect, the occasion for passing over it, and the care used in doing so. If a person knows of a defect in a walk, but believes that it can be passed in safety by the exercise of ordinary care, and he is justified as a reasonably prudent man in holding that belief, he is not negligent in attempting to pass over it in an ordinarily careful and prudent manner."

And the rule was well settled in the District of Columbia prior to the decision in the Brewer case. Mr. Justice Cox, in delivering the opinion in Muller v. District of Columbia, 16 D. C. 286, 287, said:

"The law on the subject throws on the defendant, in an action of this kind, the onus of proving contributory negligence, and that proof is not made out by merely showing the knowledge by the complainant of the defect complained of in the highway. If the highway is wholly impassable and in such condition that no reasonable man would attempt to pass it, the plaintiff does it at his own risk. But if it is not, and especially if it is the only access to his dwelling, the only duty on his part is the exercise of proper care to avoid accidents, and the burden is upon the defendant, not only to show knowledge of the defect on the part of the plaintiff, but to show, affirmatively, negligence, or the omission to take the proper care."

The same view of the law was taken subsequently in Corts v. District of Columbia, 18 D. C. 277. The opinion of the court (p. 289) cites approvingly the following passage from the opinion in the case of Prince George's County v. Burgess, 61 Maryland, 29:

"The simple fact of its existence, with the knowledge of the

plaintiff, was not sufficient to bar recovery. It should appear that the hole rendered the bridge practically impassable to effect a bar because of knowledge. The hole might possibly have been avoided with ordinary care in driving, and the knowledge of its existence ought to have prevented carelessness on the part of the plaintiff, and naturally would have induced care on his part; but the onus of showing that such care and prudence were not exercised still rested on the defendants."

The principle laid down in all these authorities harmonizes with the English rule as announced in the case of Clayards v. Dethick, 12 Q. B. 439. That case is thus digested in Pollock on Torts (6th ed. p. 462):

"The plaintiff was a cab owner. The defendants, for the purpose of making a drain, had opened a trench along the passage which afforded the only outlet from the stables occupied by the plaintiff to the street. The opening was not fenced, and the earth and gravel excavated from the trench were thrown up in a bank on that side of it where the free space was wider, thus increasing the obstruction. In this state of things the plaintiff attempted to get two of his horses out of the mews. One he succeeded in leading out over the gravel, by the advice of one of the defendants then present. With the other he failed, the rubbish giving way and letting the horse down into the trench. Neither defendant was present at that time. The jury were directed 'that it could not be the plaintiff's duty to refrain altogether from coming out of the mews merely because the defendants had made the passage in some degree dangerous; that the defendants were not entitled to keep the occupiers of the mews in a state of siege till the passage was declared safe, first creating a nuisance and then excusing themselves by giving notice that there was some danger; though, if the plaintiff had persisted in running upon a great and obvious danger, his action could not be maintained.' This direction was approved. Whether the plaintiff had suffered by the defendants' negligence, or by his own