Opinion of the Court. the general principles of law which the jury were instructed to observe in their determination of the case. Those principles preserving as far as possible the language of the charge were as follows: 1. The District government, as a municipal corporation, is charged with the duty of supervising the streets of Washington, and keeping them in a condition fit for convenient use and safe against accident to travellers using them. But it is not under an absolute obligation to respond for every accident a man may suffer in its streets. It is simply bound to practise due care and diligence in the exercise of its powers and in the application of its resources towards the objects named. If due care is once exercised, and, notwithstanding, an accident occurs and somebody is injured, it is the misfortune of the victim and not the fault of the authorities. If its duty has been fully performed in regard to any particular street and that street has been put in good condition, safe against all accidents that could be foreseen and provided for, and afterwards, by some casualty, it falls into dilapidation and becomes dangerous, as, for instance, by the caving in of a sewer, and then an accident happens, the rule is that the District government is not responsible for the injury that results, unless it had timely notice of the dangerous condition of the street, so that it could be put in repair and the danger obviated. This notice is either actual or constructive; the latter meaning that the District authorities, within the scope of their opportunities and money, being under an obligation to exercise a general supervision of the streets, and to keep themselves informed about their condition, if a street remains in a dangerous condition so long that the authorities could not help, in the exercise of ordinary care and diligence, knowing that fact, and did not know it because they failed to exercise proper vigilance, then the law imputes notice to them; in other words, they have notice in contemplation of law, and that is constructive notice. 2. No certain duration of a dangerous condition of a public highway operates of itself as a notice. The law does not require impossibilities of any person, natural or artificial, and Opinion of the Court. it is impossible that all parts of all the streets should be under constant inspection. Consequently, it could not be maintained that at the instant an accident happens to a highway the authorities are charged with notice and held liable therefor if they do not put it instantly in repair. Every such case must be determined by its peculiar circumstances. The District would not be responsible for damages arising from the bad condition of a street unless actual notice was brought to them of the condition of the street, or unless the street remained in an unsafe condition so long that they ought to have known of it if they exercised ordinary care. 3. People must build houses, and, in order to do that, it is necessary to excavate for cellars and areas, if needed, and to dig trenches to connect with the water-mains, gas-pipes and sewers. Nobody has a right to do this without a permit from the authorities, and if any person undertakes to do it without a permit, he would be responsible for any injury resulting; but the District would not be, unless it had the notice already spoken of. If a permit is granted, as is usually the case, the fact is notice to the authorities that the work is in progress, and then they are charged with the duty of seeing that it is properly conducted. 4. These works are necessarily dangerous to life and limb, and it is the duty of a person doing the work to protect it against accident to travellers on the street, and the duty of a private person is very much the same as that of the District itself when it is prosecuting an improvement. If a private individual fails to protect the excavation or hole, or whatever it may be, it is the duty of the District authorities to see that it is protected, and they are held responsible that he shall do it, for they were notified that he was going on with the work when he obtained his permit. If the individual himself supplies the protection against danger, then the duty will have been discharged on his part, and that of the District also will have been discharged just the same as in the case of the works being constructed by itself. If, then, by any unforeseen accident or the act of somebody that could not be anticipated, the protection has been removed and new danger supervenes, of course the law about notice applies. Opinion of the Court. 5. The first question for the jury was a delicate and difficult one, namely, whether in the first instance a sufficient protection was provided to guard the public against accident. A mortar-board was placed over the hole and extended several inches beyond the edges, and was the protection relied upon. If there never was an adequate protection provided in the first instance, then the duty of the builder never was fulfilled, and it would not make the slightest difference whether it became a little more dangerous by the displacement of the cover afterward or not, and the question of the notice about this displacement would not arise at all. If it was an adequate protection in the first instance, then comes the question of notice of subsequent change. 6. It was for the jury to decide whether the boards placed over the hole be sufficient to sustain the weight of an ordinary man travelling over them. It is not only necessary that the protection should be sufficient to sustain the weight of persons passing along, but another element is the security of the covering in its place over the hole to sustain the weight of a heavy man walking over it. If it would be liable to be kicked out of place by persons passing along it might not be deemed an adequate protection. But that was for the jury to decide. They must decide whether it was sufficient to sustain the weight of a person passing over it, and whether it was sufficiently secured, either by artificial appliances or by its own inherent weight, to hold it in its proper place. It was not necessary that the board placed over the hole should have been made absolutely safe against all interference, for no barrier or other safeguard could be put there which could not be removed by some force, but only that it should be safe against the consequences of the ordinary use of the street such contingencies as might fairly have been anticipated and foreseen. If it was such a precaution as proper care, diligence and foresight ought to have provided for, and the accident was not occasioned by any defect in the original appliance provided there, but that it was subsequently, by some unforeseen occurrence or agency, or the exertion of some individual, moved from its place and thereby VOL. CXXXVI-30 Opinion of the Court. made dangerous, then the above rules as to notice will apply. The burden is on the plaintiff to prove either that the thing was originally dangerous or had become so long enough before the accident for the authorities to have known it, so as to impose upon them the obligation to put it in proper condition. In regard to the amount of damages, the court said: "The rule laid down in the instructions asked on the part of the plaintiff is to the effect that the plaintiff is entitled to recover, if he is entitled to recover at all, for his loss of time, the expenditure of money made necessary by his injury, and compensation for his suffering in body and mind, and his whole condition and prospects are to be considered in case you find a verdict in his favor. It is impossible for me to say what the compensation should be, as there is no mathematical rule by which his losses can be estimated, and it is a matter for sound judgment in this as in all cases.” As to so much of the charge as instructed the jury that it was to be presumed that a permit had been given by the defendant for doing the work in the sidewalk of the street, and to so much as related to the liability of the defendant incident to and consequent upon such permit, the defendant excepted. In reference to the entire charge to the jury, it is unnecessary to say more than that it correctly stated the rules of law applicable to the case. It omitted nothing that ought to have been said, and contained nothing that was inconsistent with the principles announced in Barnes v. District of Columbia, or that was not in harmony with the established rules of evidence. We will not extend this opinion by comments. upon the instructions asked by the defendant; for the charge to the jury covered all the issues, and gave, in clear language, the whole law applicable to the case. It is, also, assigned for error that the court below, in general term, refused to consider that one of the grounds for a new trial which stated that the verdict was against the weight of the evidence; thereby, it is contended, disregarding the rule announced in Metropolitan Railroad v. Moore, 121 U. S. 561. It is attempted to support this assignment by referring to the Opinion of the Court. stenographic report of the oral opinion of Mr. Justice Hagner, speaking for the general term. It is to be found in 5 Mackey, 127, 143. This report cannot control the record of the case as certified to us. It does not appear from the record that the general term declined to pass upon any question which it was its duty to consider. This objection is, therefore, without any basis upon which to rest. Upon the whole case we are of opinion that no error of law was committed by the court below, and the judgment must be Affirmed. |