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tained a latent defect, namely, rotten and decayed boards and sills, which an ordinary pedestrian could not, and would not, be expected to discover, but which it was the duty of the village authorities to discover and repair. It is not contended that the authorities had any actual notice of the defect at this place, but it is contended, and there is some evidence to support the contention, that this was an old crossing, and that it was somewhat decayed and out of repair toward the other end from where the accident occurred. Respondents insist that, although this was a latent defect, the village authorities are chargeable with constructive notice of the same, and that their failure to have it repaired before this accident is negligence for which the municipality is liable.

1. It is settled in this state that cities and villages incorporated under the general law of the state "are liable in damages for a negligent discharge of the duty of keeping streets and alleys in a reasonably safe condition for use by travellers in the usual modes." Carson v. City of Genesee, 9 Idaho, 244, 74 Pac. 862, 108 Am. St. Rep. 127; Moreton v. Village of St. Anthony, 9 Idaho, 532, 75 Pac. 262. Without negligence there can be no recovery. Negligence may arise out of a failure to act on actual and positive knowledge of a defect or danger in a street or sidewalk, or it may equally arise out of constructive knowledge on the part of the proper village or city authorities that a defect or danger exists. 2 Dillon, Munic. Corp. § 1024; Elliott on Ev. § 2513.

2. Since it is not contended that the village had actual notice of the decayed and defective condition of the walk at the place where this injury was sustained, the recovery must be had, if at all, on the grounds of constructive notice. The walk was built prior to the incorporation of the village, but no contention is made that the walk was not properly constructed in the first place. In order to hold the village liable, it should be shown that the defect was so obvious, or had existed for such a length of time, as to indicate that the authorities knew of the danger and had known it a sufficient length of time to have repaired it. 2 Dillon, Munic. Corp. § 1025; Hanscom v. Boston, 141 Mass. 242, 5 N. E. 249; Jones v. City of Greensborough, 124 N. C. 310, 32 S. E. 675; Cook v. City of Momosa, 66 Iowa, 427, 23 N. W. 907. It is common knowledge that the board sidewalks used in the villages and most of the cities of this state will rot and decay in course of time, but the length of time in which they will become dangerous and unsafe is so indefinite and uncertain, and subject to so many influences, either advancing or retarding the process of decay, that no reasonable estimate can be made as to the specific time at and after which a walk will become unsafe. Climatic conditions are so different at different localities, and also different walks are constructed in different ways. Miller v. City of North Adams, 182 Mass. 569, 66 N. E. 197. . . . One walk might be fairly good after 10 years' use, while another might become wholly unsafe in less time.

This kind of a case is clearly distinguishable from cases involving the duty to inspect and keep in safe condition coal holes and trap doors in sidewalks and bridges and culverts within the city limits. In these latter cases the nature of the place demands a higher degree of care and vigilance and more frequent inspection than is required for the ordinary sidewalk or street crossing. In the case at bar many witnesses testified to passing over this crossing daily, and that they had never noticed any defect at or near the place of the accident. Some said the walk as a whole was in fairly good condition, while others said it had holes in it, and was in a decayed condition on the side of Pine Street next to the electric light plant, and the cause for this was given as being on account of wagons crossing, principally on that side. It seems that teams could not cross on the side next to the candy store. The street commissioner testified that he inspected this crossing about one month prior to the accident, and that it was in very fair condition," and that he discovered no danger or defects. A careful examination of the record fails to disclose any sufficient evidence on which to rest a verdict of negligence on the part of the village in not discovering and repairing this latent defect in the crossing. It may be that the village was in fact negligent in not discovering it, and that the respondents can satisfactorily establish such negligence on a new trial, but we would not be justified by the record before us in affirming the judgment. It would not do to direct a judgment in this case on account of the erroneous theory on which the case was apparently tried in the court below.

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If this Court should hold that the municipalities of this State are chargeable with notice of the time when and conditions under which a wooden sidewalk or crosswalk ceased to be safe for pedestrians on account of age and use where no patent or obvious defect is apparent, it would subject them to a hazard, care, and expense that but few of them could afford. Weisse v. Detroit, 105 Mich. 482, 63 N. W. 423; Bucker v. South Bend, 20 Ind. App. 177, 50 N. E. 412. If, on the contrary, a walk has been used for so long that it is in a general state and condition of decay and disrepair, and is allowed to remain in such condition, notice of such condition will be imputed to the municipality, and if so bad as to be dangerous, such failure to repair or improve it will become negligence. . . .

3. Again, in instruction No. 13, the Court instructed the jury: "That it is as much the duty of the defendant to keep the sidewalks in the suburbs of the defendant in a safe condition for the use of travellers as those in the heart of the city; that while the authorities may have a discretion in the matter of pavements or no pavements, yet they have no discretion in the matter of safety; and it is an absolute duty to keep all the sidewalks in the city in a reasonably safe condition for the use of travellers, whether in the heart of the city or near the limits." This instruction was evidently called forth by the fact that the cross

ing at which the accident occurred was in the outskirts of the village, and, as the witnesses testified, was the last crossing on Pine Street. Now, while it is true that the duty to keep sidewalks and crossings in a reasonably safe condition is imperative upon the municipal authorities with reference to walks in the outskirts of a town as well as in the busiest portion, still the place where the injury occurs often has an important bearing on the question of implied notice and consequent negligence. What would constitute reasonable care and precaution with reference to the repair and safety of a walk, in a remote part of a town where it is but little used, would not in every case amount to reasonable care and prudence with reference to a walk or crossing in the heart of the town, where the entire population pass over it daily.

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In view of the severity of the foregoing instructions, given on the request of the plaintiff, the error of the Court in modifying the defendants' requested instruction No. 2 was the more prejudicial, in that it tended to centre the minds of the jurors on the necessity for the corporation maintaining its walks in a state of absolute safety, rather than in a state of reasonable safety, as we understand the true rule to be. The instruction requested by the defendant was as follows: "The jury is instructed that the village of Mullan cannot be held guilty of negligence for every act or omission which would constitute negligence on the part of an individual. Much discretion is vested in such bodies. For instance: A village is not guilty of negligence for a failure to build sidewalks on all its streets, but when it has constructed a walk, it must be kept in a reasonably safe condition." The Court modified this instruction by inserting after the word "constructed" the words "or maintains" and striking out the word "reasonably," leaving the last clause of the sentence, when given to the jury, reading as follows: "But when it has constructed or maintains a walk it must be kept in a safe condition." The insertion of the words "or maintains " was entirely proper, but the striking out of the word "reasonably" broke the entire force of the instruction so far as the defendant was concerned, and tended to accentuate the necessity for the village maintaining its walks in absolute safety. This is an impossibility, and is not expected of municipalities. .

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Judgment is reversed, and a new trial ordered; costs awarded to appellant.

SULLIVAN, C. J., and STEWART, J., concur.

520. TUBERVIL v. STAMP

KING'S BENCH. 1697

Comb. 459, 1 Salk. 13, 12 Mod. 152

CASE, on the custom of the realm, quare neglegenter custodivit ignem suum in clauso suo, ita quod per flammas blada querentis, in quodam

clauso ipsius querentis combusta fuerunt. After verdict pro querentem, it was objected, the custom extends only to fire in his house or curtilage, (like goods of guests) which are in his power. Non allocatur. For the fire in his field is his fire as well as that in his house; he made it, and must see it does no harm, and answer the damage if it does. Every man must use his own so as not to hurt another; but if a sudden storm had risen which he could not stop, it was matter of evidence, and he should have shewed it. And so HOLT, ROKESBY, and EYRE; against the opinion of TURTON, who went upon the difference between fire in a house, which is in a man's custody and power, and fire in a field, which is not properly so; and it would discourage husbandry, it being usual for farmers to burn stubble, &c. But the plaintiff had judgment, according to the opinion of the other three.

521. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY v. MATHEWS

SUPREME COURT OF THE UNITED STATES. 1896

165 U. S. 1, 17 Sup. 243

THIS was an action brought in an inferior court of the State of Missouri, by an owner of land in St. Louis county, against a railroad corporation organized under the laws of the State, and owning and operating with locomotive engines a line of railway adjoining the plaintiff's land, to recover damages for the destruction of the plaintiff's dwellinghouse, barn, out-buildings, shrubbery and personal property upon that land, by fire communicated from one of those engines on August 9, 1887. The petition contained two counts, the first of which alleged negligence on the part of the defendant; and the second did not, but was founded on the statute of Missouri of March 31, 1887, by which

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each railroad corporation, owning or operating a railroad in this State, shall be responsible in damages to every person and corporation whose property may be injured or destroyed by fire communicated, directly or indirectly, by locomotive engines in use upon the railroad owned or operated by such railroad corporation; and each such railroad corporation shall have an insurable interest in the property upon the route of the railroad owned or operated by it, and may procure insurance thereon in its own behalf, for its protection against such damages." Missouri Laws of 1887, p. 101; Rev. Stat. of 1889, § 2615. The answer, among other defences, set up that the statute violated the Constitution of the United States, by depriving the defendant of its property without due process of law; and by denying to it the equal protection of the laws. .

At the trial the plaintiff introduced evidence tending to support the allegations of the petition; and the Court, at his request, instructed the jury that "if they believed from the evidence that during the month of August, 1887, plaintiff was the owner of the land in the petition de

scribed, and the defendant was the owner or operating a railroad adjoining said land, having locomotive engines in use upon the said road, and that on August 9, 1887, fire was communicated from a locomotive engine, then in use upon the railroad owned or operated by defendant, to plaintiff's property on his said land, and thereby the buildings and other property in the petition mentioned, or any of it, were destroyed, then the jury will find for the plaintiff." The Court refused to give to the jury the following instructions requested by the defendant: "Though the jury may believe from the evidence that fire was communicated from a locomotive engine on use in defendant's railroad to plaintiff's property, as charged in the second count of plaintiff's petition, yet that fact is only prima facie evidence of negligence on the part of defendant, and unless the jury believe from the whole evidence in the case that said fire was either negligently set out by defendant, or was communicated to plaintiff's property by reason of defendant's negligence, the plaintiff cannot recover." The defendant excepted to the instruction given as well as to the refusal to instruct as requested; and, after verdict and judgment for the plaintiff, appealed to the Supreme Court of the State, which held the statute to be constitutional, and affirmed the judgment. 121 Missouri, 298. The defendant sued out this writ of error.

Mr. David D. Duncan, (with whom were Mr. John F. Dillon and Mr. Winslow F. Pierce on his brief), for plaintiff in error. Mr. L. F. Parker filed a brief for plaintiff in error.

Mr. Percy Werner and Mr. Garland Pollard, for defendant in error, submitted on their brief.

Mr. Justice GRAY, after stating the case, delivered the opinion of the Court. The only question presented by the record, of which this Court has jurisdiction, is whether there is anything inconsistent with the Constitution of the United States in the statute of Missouri of March 31, 1887, by which every railroad corporation owning or operating a railroad in the State is made responsible in damages for property of any person injured or destroyed by fire communicated by its locomotive engines; and is declared to have an insurable interest in property along its route, and authorized to insure such property, for its protection against such damages. . . . The argument that this statute is in excess of the power of the Legislature may be the most satisfactorily met by first tracing the history of the law regarding the liability of persons for fire originating on their own premises and spreading to the property of others.

At common law, every man appears to have been obliged, by the custom of the realm, to keep his fire safe so that it should not injure his neighbor; and to have been liable to an action if a fire, lighted in his own house, or upon his land, by the act of himself, or of his servants or guests, burned the house or property of his neighbor, unless its spreading to his neighbor's property was caused by a violent tempest or other

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