injury resulting from a defective sidewalk, a city is liable in damages. Cusick v. Norwich, 40 Conn. 375; Higert v. Greencastle, 43 Ind. 574; Durant v. Palmer, 29 N. J. Law, 544. But the duty of the city is only to see that its sidewalks are reasonably safe for persons exercising ordinary care and caution. City of Chicago v. McGiven, 78 Ill. 347. And to render a city liable for injuries resulting from a defect therein, it must appear, either that the city had notice of the defect, or that it was a patent defect and had continued so long that notice might reasonably be inferred, or that the defect was one which, with reasonable and proper care, should have been ascertained and remedied. Jansen v. City of Atchison, 16 Kans. 358; Hall v. Manchester, 40 N. H. 410; Dewey v. Detroit, 15 Mich. 307; Chicago v. McCarthy, 75 Ill. 602; Moore v. Minneapolis, 19 Minn. 300. And see Harriman v. Boston, 114 Mass. 241. Where a city is under no legal obligation to cause its streets to be lighted for the security of travelers, mere notice to a lamp-lighter of a defect in a sidewalk does not warrant a finding that the city had notice thereof. Monies v. Lynn, 119 Mass. 273. But the rule that a city must have notice, actual or implied, of a defect in a sidewalk, before it can be held liable for an injury caused by the defect, has no application to a case where the ignorance of the defect is the result of a clear and unmistakable omission. Ignorance in such a case is itself negligence. Boucher v. New Haven, 40 Conn. 457. See, also, Alexander v. Town of Mt. Sterling, 71 Ill. 366.

Where it is made the duty of the municipal autnorities to see that the sidewalks are kept reasonably clear of ice and snow, and they permit such an accumulation thereof as to constitute an obstruction to remain an unreasonable length of time, to the danger of travelers, the corporation is chargeable with negligence without proof of actual notice. Todd v. City of Troy, 61 N. Y. (16 Sick.) 506; affirming S. C., sub nom. Mosey v. City of Troy, 61 Barb. 580. See, generally, as to the liability of a city for ice and snow on a sidewalk, and what is reasonable care in removing it. Landolt v. Norwich, 37 Conn. 615; Stone v. Hubbardston, 100 Mass. 49; Durkin v. City of Troy, 61 Barb. 437; Savage v. Bangor, 40 Me. 176; Hall v. Manchester, 40 N. H. 410; Collins v. Council Bluffs, 32 Iowa, 324; 7 Am. Rep. 200; Cook v. Milwaukee, 24 Wis. 270; 1 Am. Rep. 183; 27 Wis. 191; McLaughlin v. Corry, 77 Penn. St. 109; 18 Am. Rep. 432; McAuley v. Boston, 113 Mass. 503.

It has been held that a structure, such as the cornice. of a building, projecting over a street in a city in such a manner as to be dangerous to passers-by, is a nuisance which the corporate authorities may abate,

and if they fail so to do after notice of its dangerous character, the city will be liable to any one injured thereby. Grove v. Fort Wayne, 45 Ind. 429; S. C., 15 Am. Rep. 262. And see Parker v. Macon, 39 Ga. 725; Norristown v. Moyer, 67 Penn. St. 355. But it has been held in the New England States, in decisions based upon statutes prescribing the duties and liabilities of municipal corporations, that a town or city is not liable to one injured by a falling sign suspended over the sidewalk (Jones v. Boston, 104 Mass. 75; S. C., 6 Am. Rep. 194; Hewison v. New Haven, 37 Conn. 475; S. C., 9 Am. Rep. 342; Taylor v. Peckham, 8 R. I. 349; S. C., 5 Am. Rep. 578); nor for an injury caused to a foot passenger on a sidewalk, by the falling of an overhanging mass of snow and ice from the roof of a building not owned by the city, although it had so overhung the highway for more than twenty-four hours before the accident. Hixon v. Lowell, 13 Gray, 59. But the statute of Massachusetts is held to extend to injuries caused by defective awnings projected over the sidewalk, where the defect or want of repair in the projection is of such a nature as to render its continuance dangerous to the public safety. Day v. Milford, 5 Allen, 98.

Where the plaintiff was injured by falling at night from a sidewalk, into a sunken lot, the walk being out of repair and unguarded through the negligence of the city, it was held that the fact that the plaintiff was at the time intoxicated did not preclude a recovery for the injury, unless such intoxication contributed thereto; and that whether it did so contribute was a question of fact for the jury. Healy v. Mayor of New York, 3 Hun (N. Y.), 708; S. C., 6 N. Y. Sup. Ct (T. & C.) 92. And see Stuart v. Machias Port, 48 Me. 477; Lovenguth v. Bloomington, 71 Ill. 238; Alger v. Lowell, 3 Allen, 402; Ditchett v. Spuyten Duyvil, etc., R. R. Co., 5 Hun (N. Y.), 165.

Municipal corporations are not liable to vindictive or exemplary damages for personal injuries growing out of mere neglect to keep a sidewalk in a safe condition. In order to justify such damages, the negligence of the authorities must be so gross as to be willful. City of Chicago v. Kelly, 69 Ill. 475. See ante, tit. Damages, Vol. 2. § 7. Defective bridges. See ante, Vol. 1, tit. Bridges. In this country, the power of municipal corporations to erect bridges, and their authority over them, are purely statutory; and there is no commonlaw responsibility resting upon such corporations as it respects the repair of bridges within their limits. See Hill v. Supervisors of Liv ingston County, 12 N. Y. (2 Kern.) 52. But where bridges are part of the streets, and built by the municipal authorities under powers given

to them by the legislature, they are liable for defects therein, on the same principles and to the same extent as for defective streets and sidewalks. Manderschid v. Dubuque, 29 Iowa, 73; 4 Am. Rep. 196; Krause v. Davis County, 44 id. 141; Smoot v. Wetumpka, 24 Ala. 112; Chicago v. McGinn, 51 Ill. 266; S. C., 2 Am. Rep. 295; State v. Supervisors of Wood County, 41 Wis. 28; Griffin v. Town of Williamstown, 6 W. Va. 312; Dill. on Mun. Corp., § 579. But a city is under no legal obligation to make approaches, for the convenience of its citizens, to a bridge built by a corporation within the city limits. Joliet v. Verley, 35 Ill. 58. If, however, such approaches are voluntarily constructed by the city, they must be made safe for travelers, and the city is liable. in damages for an accident caused by their defective condition. Id. And see Daniels v. Intendent, etc., of Athens, 55 Ga. 609, which holds that a contiguous embankment necessary to make access to a bridge so as to pass teams and wagons over it is a part of the bridge, and title to the bridge covers such an embankment.

§ 8. Excavations or obstructions. A municipal corporation which has caused an excavation to be made in its streets, and neglects to keep proper lights and guards around it in the night, is liable to persons receiving injury therefrom, and its liability is not varied by the consideration that it has or has not contracted with the persons doing the work to adopt such precautions. Storrs v. Utica, 17 N. Y. (3 Smith) 104. And see King v. New York Central, etc., R. R. Co., 66 N. Y. (21 Sick.) 181. But a city is not liable for an injury to a person caused by falling into an excavation in a sidewalk made by the owner of an adjoining lot, and not by the officers or agents of the city, left open, unguarded, without barriers or lights, in the night-time, where no notice of the condition of such excavation was had by the city, and no facts existed from which notice to the city might reasonably be inferred. Fort Wayne v. De Witt, 47 Ind. 391.

Cellar doors opening out on the sidewalk, and frequently and negligently kept or left open, endanger the use of the sidewalk, and the city is liable to persons falling into them and injured thereby, if it has notice of such negligent use of the cellars. If such use has continued a long time, notice will be presumed, and the city is chargeable therewith without actual proof of notice. Smith v. City of Leavenworth, 15 Kans. 81; Chapman v. Mayor of Macon, 55 Ga. 566. See, further, as to liability of cities for injuries from excavations, Bassett v. St. Joseph, 53 Mo. 290; 14 Am. Rep. 446; Tallahassee v. Fortune, 3 Fla. 19; Davenport v. Ruckman, 10 Bosw. (N. Y.) 20; S. C., 16 Abb. Pr.

341.

Neither of the joint owners of a wall can recover damages from a

municipal corporation for the falling thereof, by reason of excavations made by consent of the other, in the work of grading a street. Mitchell v. Mayor, etc., of Rome, 49 Ga. 19; 15 Am. Rep. 669. Nor is a municipal corporation liable for damages resulting from the digging of a trench in one of its public streets, by a private individual, under a license from the corporate authorities, for the purpose of making a connection with the main conduit pipes for distributing water to the inhabitants, and neglecting properly to fill up the same. West Chester v. Apple, 35 Penn. St. 284. And see Pfau v. Williamson, 63 Ill. 16; Dorlon v. Brooklyn, 46 Barb. 604; Burnham v. Boston, 10 Allen, 290; Norwich v. Breed, 30 Conn. 535.

In the New England States, towns and cities are obliged by statute to keep their highways and streets in repair and it is there held that where railroad companies are authorized by law to construct their roads over public highways and streets, and a person is injured by reason of a defective highway or street thus occasioned, the town or city is primarily responsible to such person, leaving it to seek indemnity from the railroad company. See Willard v. Newbury, 22 Vt. 458; Currier v. Lowell, 16 Pick. 170; Phillips v. Veazie, 40 Me. 96; Barber v. Essex, 27 Vt. 62. And see Kittredge v. Milwaukee, 26 Wis. 46. The person injured may, however, elect to proceed at once against the railroad company. Elliott v. Concord, 27 N. H. 204; Lowell v. Railroad Company, 23 Pick. 24.

It is held under the New Hampshire statute, that a structure which for some years obstructs the safe and convenient use of a highway in a city renders the city liable to indictment for not keeping the highway "in good repair and suitable for the travel passing thereon." State v. Dover, 46 N. H. 452.

In general, a municipal corporation is not liable for the acts of its inhabitants in obstructing its streets, when notice of such obstruction is not shown to have been received by its officers, nor is presumed, from lapse of time. Dorlon v. City of Brooklyn, 46 Barb. 604; Griffin v. Mayor of New York, 9 N. Y. (5 Seld.) 456.

§ 9. Improper sewers. The entire omission to construct a sewer, or the failure to make it of sufficient size, has been held not to create a liability on the part of a municipal corporation, for the reason that the duty of determining where sewers shall be located and their dimensions is, in its nature, judicial. Mills v. Brooklyn, 32 N. Y. (5 Tiff.) 489; City Council v. Gilmer, 33 Ala. 116; Child v. Boston, 4 Allen, 41; Carr v. Northern Liberties, 35 Penn. St. 324; Dermont v. Detroit, 4 Mich. 435. For the same reason it is held that after the corporation has constructed a sewer or drain, it may, in its discretion,

wholly abandon or discontinue it; and if the inhabitants are not left in any worse condition by such abandonment or discontinuance than they would be if such sewer or drain had never been made, the corpo ration will not be liable for any injury to individuals caused by the flow of surface water. City of Atchison v. Challiss, 9 Kans. 603. And see Judge v. Meriden, 38 Conn. 90; Grant v. Erie, 69 Penn. St. 420; 8 Am. Rep. 272; Barry v. Lowell, 8 Allen, 127; Roll v. Indianapolis, 52 Ind. 547. But where a sewer has been determined upon and is constructed, all the authorities agree that the duties of constructing it properly and keeping it in good condition and repair are ministerial; and that negligence in the performance of those duties will render the corporation liable for damages resulting therefrom. Jones v. New Haven, 34 Conn. 1; Donohue v. Mayor of New York, 3 Daly, 65; Logansport v. Wright, 25 Ind. 512; McCarthy v. Syracuse, 46 N. Y. (1 Sick.) 194; Rowe v. Portsmouth, 56 N. H. 291; 22 Am. Rep. 464 ; Simmer v. City of St. Paul, 23 Minn. 408; Wallace v. Muscatine, 4 Greene (Iowa), 373; Savannah v. Waldner, 49 Ga. 316; Smith v. Mayor, 66 N. Y. (21 Sick.) 295. Thus, where the water of a stream, which a riparian proprietor has been in the habit of using in his business, has become polluted by the emptying into it of city sewers, he can recover against the city for the pollution, so far as it is attributable to the improper construction or unreasonable use of the sewers, or to the negligence or other fault of the city in the care or management of them. Merrifield v. Worcester, 110 Mass. 216; 14 Am. Rep. 592. So, where the officers of a municipal corporation, in pursuance of a lawful authority, give permission to a lot owner to connect his lot with a sewer, such officers are required to exercise reasonable care to prevent injury, and for the omission thereof the corporation is liable. Masterton v. Village of Mount Vernon, 58 N. Y. (13 Sick.) 391. But in the absence of any want of proper care, upon the part of its officers, it is not responsible for the negligence of those employed by the lot owner to do the work. Id.

A city has no right, in constructing a sewer, to discharge the filth therefrom upon the premises of an individual, and if, in so doing, a private injury is sustained, it is liable in damages. Jacksonville v. Lambert, 62 Ill. 519. See, also, O'Brien v. St. Paul, 18 Minn. 176; City of Chicago v. Brophy, 79 Ill. 277; Columbus v. Woolen Company, 33 Ind. 435.

§ 10. Injuries from flowing lands. A municipal corporation has no authority under its general power to grade and improve streets, or make public improvements, to deprive others of their property rights in a natural water-course, or to injure them by badly constructed and VOL. IV.-81