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[*625] *Defects in Sidewalks. The statutes rendering towns

liable for defects in highways are generally held to include defects in sidewalks also.'

Streets and Highways in Incorporated Cities, etc.

It is a principle of nearly universal acceptation in this country, when a town is incorporated and is given control over the streets and walks within its corporate limits, and is empowered to provide the means to make and repair them, that the corporation not only assumes this duty, but by implication agrees to perform it for the benefit and protection of all who may have occasion to make use of these public easements; and that for any failure in the discharge of this duty the corporation is responsible to the party injured. This rule applies to injuries sustained in conse

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Green o. Danby, 12 Vt. 338. See Brady o. Lowell, 3 Cush. 121; RaySeeley 0. Litchfield, 49 Conn. 134. mond o. Lowell, 6 Cush. 524; Lowell That a road is letto a contractor 0. Spaulding, 4 Cush. 277; Kirby e. to keep in repair does not affect Market Assn., 14 Gray, 249; Man. the liability of the town.

chester 0. Hartford, 30 Conn. 118; hanoy o. Scholly, 84 Penn. St. 136. Hubbard 0. Concord, 35 N. H. 52; If an individual causes the defect, he Coombs o. Purrington, 42 Me. 3:32; will be responsible; but so will the Stewart o. Ripon, 38 Wis. 584; Smith town for suffering or not preventing 0. Wendell, 7 Cush. 498; Winn e. it. Rowell 0. Wilhams, 29 Iowa, 210; Lowell, 1 Allen, 177; Loan o. Boston, Smith o. Leavenworth, 15 Kan. 81; 106 Mass. 450; Weare o. Fitchburg, Centerville 0. Woods, 57 Ind. 192; 110 Mass. 334; Harriman e. Boston, Boucher o. New Haven, 40 Conn. 456. 114 Mass. 241; McAuley . Boston, And it will be liable, though under 113 Mass. 503; Street o. Holyoke, 105 proper authority it has imposed the Mass. 82; Drake o. Lowell, 13 Met. obligation to repair upon the adjacent 292; Hixon d. Lowell, 13 Gray, 59; land owners. Wallace o. New York, Providence o. Clapp, 17 How. 161, 2 Hilt. 440; Rockford o. Hildebrand, (from R. I.). See Monies o. Lyon, 121 61 Ill. 155. If the municipality is Mass. 442. compelled to make compensation for 2 See Weightman o. Washington, 1 an injury for which some individual Black, 39; Chicago 0. Robbins, 3 is primarily liable, it is entitled to in- Black, 418; Nebraska e. Campbell, 2 demnity under the principles hereto. Black, 590; Manchester 0. Ericsson, fore laid down.

See ante 166,

et seq. 105 U. S. 347; Grant o. Still water, 35 Also, Patterson o. Colebrook, 29 N.H. Minn. 242; Galveston o. Pospainsky, 94; Elliott o. Con ord, 27 N. H. 204; 62 ex. 118; Kent o. Worthing Local Willard v. Newbury, 22 Vt. 458; New. Board, L. R. 10 Q. B. D. 118; Nelson bury c. Conn. &c., R. R. Co., 25 Vt. 0. Canisteo, 100 N. Y. 89; Weet 6. 377; Robbins o. Chicago, 4 Wall. 657; Brockport, 16 N. Y. 161, note, and Portland o. Richardson, 54 Me. 46; numerous other cases. See Veeder e. Centerville o. Woods, 57 Ind. 192. Little Falls, 100 N, Y. 343; Dubois e.

'Bacon 0. Boston, 3 Cush. 174; Kingston, 102 N. Y. 219. Contra,

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quence of defects in sidewalks.' A city may impose the duty *of making and keeping the sidewalks in repair [*626) upon the adjoining owners; but doing so does not relieve the city itself from responsibility to perform the duty imposed upon it by law; and if the duty fails in performance, the city and the individual in default may be united in a suit for the injury caused by the nuisance.'

Detroit o. Blackeby, 21 Mich. 84; Young 0. Charleston, 20 S. C. 116. This subject cannot be pursued here; it is of course treated fully in the ex. haustive treatise of Judge Dillon on the Law of Municipal Corporations. A city does not escape liability by employing an independent contractor. Logansport o. Dick, 70 Ind.65; Jack. sonville 0. Drew, 19 Fla. 106; Mayor, &c. of Baltimoreo. O'Donnell, 53 Md. 110. As to liability for unguarded area near street lines, see Clarke o. Rich. mond, 5 S. E. Rep., 369 (Va.); Indianapolis 0. Emmelman, 108 Ind. 530; Hubbell o. Yonkers, 104 N. Y. 434; Monk o. New Utrecht, Id. 552. Liable for fall of dangerous building on street lipe. Duffy 0. Dubuque, 63 la. 171. Not liable for defect nor obstruction in untraveled part of a street. McArthur 0. Saginaw, 58 Mich. 357; Fitzgerald o. Berlin, 64 Wis. 203; see Agnew 0. Corunna, 55 Mich. 428; at least in a suburban street, Monongahela 0. Fischer, 111 Penn. St. 9.

1 Bloomington o. Bay, 42 Ill. 503; Scammon 0. Chicago, 25 Ill. 424; Rockford o. Hillebrand, 61 Ill. 155; Lacon o. Page, 48 III: 499; Alexander o. Mt. Sterling, 71 Ill. 366; Lovenguth o. Bloomington, 71 III. 238; Quincy o. Barker, 81 Ill. 300; Chicago o. McGiven, 78 Ill. 347; Chicago o. Mc. Carthy, 75 Ill. 602; Joliet 0. Verley, 35 Ill. 58; Galesburg 0. Higley, 61 Ill. 287; Chicago 0. Kelly, 69 Ill. 475; Chicago 0. Robbins, 2 Black, 418, (from Illinois); Wallace o. New York,

2 Hilt. 440; Davenport o. Ruckman, 37 N. Y. 568; Koester 0. Ottumwa, 34 Iowa, 41; Rowell 0. Williams, 29 Iowa, 210; St. Paul o. Kuby, 8 Minn. 154; Atlanta o. Perdue, 53 Geo. 607; Bohen o. Waseca, 32 Minn, 176. See Bell o. West Point, 51 Miss. 262; Baltimore o. Marriott, 9 Md. 160; Atchison o. King, 9 Kan. 550; McDonough 0. Virginia City, 6 Nev. 90; Russell 0. Canastota, 98 N. Y. 496; Dotton 0. Albion, 50 Mich. 129; O'Neil o. Detroit, Id. 133. See Hanscom v. Boston, 141 Mass. 242; Platts. mouth 0. Mitchell, 29 N. W. Rep. 593 (Neb.). In Chicago 0. Schmidt, 107 Ill. 187, the city was held liable where from a defective walk one was thrown on a railroad track and killed by a train. Liable for defects though a minor was using street as a playground. Chicago 0. Keefe, 114 Ill. 222. See Donoho v. Vulcan Iron Works, 75 Mo. 401; Varney v. Man. chester, 58 N. H. 430; McGuire 0. Spence, 91 N. Y. 303; Gulline 0. Lowell, 144 Mass. 491. Standing for five minutes to watch a procession is not such a use of a street that one ceases to be a traveler and entitled to protection as such. Varney o. Man. chester, 58 N. H. 430, collecting many cases,

2 Davenport o. Ruckman, 37 N. Y. 568. See Rowell 0. Williams, 29 Iowa, 210. Contra, Marquette 0. Cleary, 37 Mich. 296. If a common duty rests on the city and the owner both are liable though there is no concert of action. Peoria o. Simpson,

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Obstructions consequent on the repair of streets create no liability if there is no negligence.'

Individual Liability for Defects in Streets. If an individual, whether the adjoining owner or not, and whether the fee in the public way is in himself or in the public, does any act which renders the use of the street hazardous or less secure than it was left by the proper public authorities --as by excavations made in the sidewalks, or by unsafe hatchways left therein, or by opening or leaving open area ways in the traveled way, or by andermining the street or sidewalk-he commits a nuisance, and he is liable to any person who, while exercising due care, is injured in consequence. If, however, he has the consent of the proper

110 III. 204. See Papworth o. Milwau- bach o. Milwaukee, 65 Wis. 31; Smyth kee, 64 Wis. 389.

0. Bangor, 72 Me. 249; Broburg e. Space will not be taken up with & Des Moines, 63 Ia. 523; McKellar e. specification of what constitute de- Detroit, 57 Mich. 158. fects in sidewalks. How far snow * Kimball o. Bath, 38 Me. 219. See and ice may constitute a defect has Robbins 0. Chicago, 4 Wall. 657; been so much a matter of controversy Klatt 0. Milwaukee, 53 Wis. 196, that the following references to cases where & barrier had been removed are given: Cook 0. Milwaukee, 24 without notice to the city. Compare Wis. 270; Luther 0. Worcester, 97 Mayor, &c., of Baltimore o. O'DonMass. 268; Hutchins 0. Boston, 97 nell, 53 Md. 110. Mass. 272, note; Collins o. Council 2 Robbins o. Chicago, 2 Black, 418; Bluffs, 32 Iowa, 324; Nason 0. Bos- S. C. 4 Wall, 657; Bush o. Johnston, ton, 14 Allen, 508; Stanton o. Spring. 23 Penn. St. 209; Beatly o. Gilmore, field, 12 Allen, 566; Chicago o. Mc- 16 Penn. St. 463; Irvin 0. Fowler, 5 Given, 78 III. 347; Powers o. Chicago, Rob, 482; Davenport 0. Ruckman, 10 20 II. App. 178; McLaughlin 0. Bosw. 20; S. C. 37 N. Y. 568; ConCorry.77 Penn. St. 10); Mauch Chunk greve o. Smith, 18 N. Y. 79; Congreve 0. Kline, 100 Penn, St. 119; Hanson o. Morgan, 18 N. Y. 84; Durant e. 9. Warren, 14 Atl. Rep. 405 (Penn.) Palmer, 29 N. J. 544; Pfau o. Rey. Shea v. Lowell, 8 Allen, 136; Wilson polds, 53 Ill. 212; Severin v. Eddy, 52 0. Charlestown, 8 Allen, 137; Payne o. Ill. 189; Rowell o. Williams, 29 Iowa, Lowell, 10 Allen, 147; Hall o. Lowell, 210; Driscoll v. Carlin, 11 Atl. Rep. 10 Cush. 260; Baltimore o. Marriott, 9 482 (N. J.); Calder o. Smalley, 66 la. Md. 160; Providence o. Clapp, 17 219. If a street car company leaves How. 161; Calkins 0. Hartford, 33 ridges of snow in cleaning its tracks Conn. 57; Dooley o. Meriden,44 Conn. and thereby a traveler is injured, it is 117; Cloughessey 0. Danbury, 51 iable. Bowen o. Detroit, &c., Ry Conn. 405; Pomfrey 0. Saratoga Co., 54 Mich. 496; Wallace o. Detroit, Springs, 104 N. Y. 459; Taylor o. &c., Ry Co. 58 Mich. 231. If the Yonkers, 105 N. Y. 202; Kinney o, slot for the grip in track of a cable Troy, 15 N. E. Rep. 728 (N. Y.). Ka- car company is large enough to let a veny v. Troy, Id. 726 (N. Y.); Grossen

carriage wheel slip into it, the com

pnblic anthorities, and what he does is consistent with the customary use of the way for private purposes—as where he is making connection with a public sewer or with a gas *main—and he observes a degree of care proportioned to [*627] the danger, and is consequently chargeable with no fault, he cannot be held responsible for accidental injuries, inasmuch as in such case he has failed in the observance of no duty. The question in all such cases is one of due and proper

care.

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pany is liable without notice. Keitel reason of its non-repair the city has 0. St. Louis Cable Ry Co., 28 Mo. to pay damages, the owner is not App. 657.

liable over.

Keokuk 0. Ind. Sch. "Ottumwa o. Parks, 43 Iowa, 119; Dist., 53 Ia. 352. But see Detroit o. Portland o. Richardson, 54 Me. 46. Chaffee, 37 N. W. Rep. 882 (Mich., See Kimball 0. Bath, 38 Me. 219; and cases in note p. 746, supra. The Kirkpatrick o. Knapp, 29 Mo. App. 427; owner may be made primarily liable Crandall o. Loomis, 56 Vt. 664. If for the injury in Wisconsin. Henone chargeable with no duty as to ker o. Fond du Lac, 38 N. W. Rep. maintaining a sidewalk, takes up and 187; Raymond 0. Sheboygan 35 Id. replaces a loose plank in it, he is not 540; but in Minnesota, he can be liable to one afterward injured by it. made liable only to the city. Noonan Davis o. Mich. Bell, &c., Co., 28 N.W. 0. Stillwater, 33 Minn. 198. As to Rep. 109 (Mich.). One is not obliged liability for failure to remove snow to make his bridge as safe as a side. and ice where ordinance requires it. walk if he is digging under the side- Wenzlick o. McCotter, 87 N. Y. 122; walk by a city's authority. Nolan o. Moore o. Gadsden, N. Y. 12; TayKing, 97 N. Y. 565. Lot owner not lor o. Lake Shore, &c., Co., 45 Mich. liable for fall of limbs upon traveler 74. See also Merritt,c. Fitzgibbons, 102 where a city has authority to trim N. Y. 362, where a man slipped under shade trees. Weller 0. McCormick, a horse's feet and was hurt by the 47 N. J. L. 397. Where an owner's horse and lot owner was held not duty is to repair the walk and in liable. As to liability over in such default thereof the city is to do it and

Hartford o. Talcott, 48 Conn. charge the lot with the expense, if by 525.

case.

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* OHAPTER XX:

WRONGS FROM NON-PERFORMANCE OF CONVENTIONAL AND

STATUTORY DUTIES.

In this chapter will be considered certain cases in which, by virtue of some conventional relation between parties, a specific obligation is imposed upon one to observe some special course of conduct as regards the person or the property of the other. The most numerous of these are cases of bailment, but in some a special duty is undertaken or in contemplation of law promised as regards both person and property.

Bailment, what is. Bailment is a delivery of goods in trust, apon an agreement expressed or implied, that the trust shall be duly exercised, and the goods returned or delivered over when the purpose of the bailment is accomplished. There are several sorts of bailment, and for our purposes we follow the classification of Mr. Justice Story, which is as follows:

1. Those in which the trust is for the benefit of the bailor. 2. Those in which the trust is for the benefit of the bailee. 3. Those in which the trust is for the benefit of both parties.'

The classification is important here, because the degree of care and vigilance required of the bailee is justly held to be in some degree dependent upon the circumstance that the benefit is to accrue to one rather than the other, or to both instead of one only.

Bailments for the Benefit of the Bailor. Of the first class of bailments, or those in which one assumes a trust in goods for the benefit of the owner, it is to be said that these are usually mere matters of friendly accommodation ; such as the carriage of a

parcel from one town to another by one who is going on [*629] his *own business, for his neighbor, who is thereby saved the necessity of a journey to carry it himself. In

1 Story on Bailments, $ 3.

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