the corporation than the fact that the plaintiff, while driving along one of its streets in his cutter on a stormy day, struck against a stick of timber buried under the snow, and was injured, it was held that he could not recover.2

4

§ 7841. Evidence of Official Resolutions, Reports, Ordinances, etc. -A preamble and resolution passed by the City Council previously to the accident for which the suit was brought, reciting that, owing to insufficient lights and protection to the approaches of several bridges in the city, several accidents had happened, and appointing a committee to report a plan for preventing a recurrence thereof, are admissible as showing notice to the city authorities of the insufficient lights provided. In Massachusetts this rule of evidence is denied. It is there held that a report of a committee duly appointed by the town, that a certain way is unsafe, although duly accepted by the town, is not evidence against the town in an action for injuries arising from an alleged defect in such way. Evidence that the county commissioners, after the fall of a span of a bridge, examined the remaining span and decided to build an entirely new bridge, because the span remaining was unsafe and too flimsy a structure to withstand a heavy load, has been held inadmissible in an action against the county for damages for injuries occasioned by the falling span.5 Where, in an action for an injury proceeding from snow and ice accumulated upon the sidewalk, the plaintiff introduced an ordinance imposing a penalty upon lotowners for failure to keep their sidewalks in repair, the Court of Appeals of New York saw no error harmful to the defendant. "It had no material bearing in favor of the plaintiff, except to show that the trustees were aware of the importance of removing such obstructions from the sidewalks of the village and of their dangerous character." It is, of course, competent to show by the records of the city council that the street, at the point where the accident happened, has been brought within the city limits. Evidence of resolutions passed by a city council ordering the sidewalk to be repaired, is admissible to show notice on the part of the village of the condition of the walk.8 Evidence of an ordinance authorizing the defendant to maintain stock yards within the limit of a municipal corporation, but not on its

2 Gorham v. Cooperstown, 59 N. Y. 660.

3 Chicago v. Powers, 42 Ill. 169. 'Collins v. Dorchester, 6 Cush. (Mass.) 396; Wheeler v. Framing

ham, 12 Cush. (Mass.) 287.

104 N. Y. 459, 469; s. c. 11 N. E. Rep. 43.

'Huntington v. Mendenhall, 73 Ind. 460.

& Thompson v. Quincy, 83 Mich. 173; s. c. 10 L. R. A. 734; 47 N. W.

Wabash Co. v. Pearson, 129 Ind. Rep. 114; Butler v. Malvern, 91

456; s. c. 28 N. E. Rep. 1120.

"Pomfrey v. Saratoga Springs,

Iowa 397; s. c. 59 N. W. Rep. 50.

streets, is clearly irrelevant in an action for a personal injury resulting from the maintenance of scales on the street. A city ordinance providing that any one who should dig any excavation in a street within the city limits, and leave the same unfenced, or not securely covered, should be deemed guilty of a misdemeanor, has been upheld, and its admission in evidence sustained, in an action against a licensee of the city for injuries caused by the plaintiff's falling into a ditch in a public street in the night-time which such licensee had left open. 10 A city ordinance regulating the placing of guys and ropes across the public streets has been held inadmissible, on the trial of a case in which negligence is charged, for the purpose of showing at what distance above the street the authorities regarded it as safe and proper to stretch. guys and ropes.11

§ 7842. Various Questions of Evidence Relating to the Defect: which Caused the Injury.-Although a city is under no obligation to light a street,12 still, the fact that it was not lighted may be material upon the question of contributory negligence, inasmuch as it may be safe if lighted and dangerous if unlighted, and evidence is admissible to show that the particular place was unlighted.13 The failure of a city to construct a walk in the manner required by an ordinance, though not conclusive that the walk was improperly constructed, is an element to be considered upon that question.1 In an action to recover damages sustained by the plaintiff from injuries to his horse, caused by the defendant's negligence in constructing a culvert under a street, which caused the deposit of impediments in the street, evidence is admissible that the culvert was not of sufficient size and was blocked up with rubbish.15 In an action against a town for an injury sustained by the falling of a bridge which it was bound to keep in repair, evidence is admissible to show that the cause of the fall was the accumulation of snow on the roadway, or excessive weight of the planking thereon, or the defective condition of the iron work, or all of these combined. 16 In an action for injuries to the person from a defective sidewalk, the complaint alleged that it was "in a dilapidated and dan

9 Rupp v. Howard, 114 Iowa 65; s. c. 86 N. W. Rep. 38.

10 Browne v. Bachman, 31 Tex. Civ. App. 430; s. c. 72 S. W. Rep. 622.

11 Larson v. Ring, 43 Minn. 88; s. c. 44 N. W. Rep. 1078.

12 See Vol. V, § 6027.

12 Denver v. Hyatt, 28 Colo. 129; s. c. 63 Pac. Rep. 403; Miller v. St. Paul, 38 Minn. 134; s. c. 36 N. W.

Rep. 271. See also, Lewis v. Atlanta, 77 Ga. 756; s. c. 4 Am. St. Rep. 108.

14 Smith v. Pella, 86 Iowa 236; s.. c. 53 N. W. Rep. 226; Shumway v. Burlington, 108 Iowa 424; s. c. 79 N. W. Rep. 123.

15 Hazzard v. Council Bluffs, 79 Iowa 106; s. c. 44 N. W. Rep. 219. 16 Whitman V. Groveland, 131 Mass. 553.

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gerous condition, the board or planks being old and decayed, and not being nailed or in any manner properly fastened to the timbers across which they were laid," and that the city had knowledge thereof. It was held not error to admit evidence of defects in the original construction of the walk; and this, though it was constructed by private persons, and not by the city; this being no variance.17 Evidence that cows sometimes passed along a walk has been held inadmissible, as too remote and uncertain, to show that a plank was broken in such a manner before a traveller stepped on it.18

§ 7843. Barricades and Lights at Excavations.-Evidence that barricades or lights were not maintained at an excavation or other dangerous place in a highway is properly admitted, though such facts are not charged as negligence in the declaration, since they are competent on the question of the plaintiff's exercise of due care.19 A bicyclist injured by a fall into an excavation across the highway guarded by lights is entitled to show the usual practice with respect to placing lights as signals, where it is claimed that contrary to the usual custom the lights displayed marked the extremities of the safe portion of the road, instead of the dangerous portion.20

§ 7844. Evidence of the Condition of the Highway near the Time of the Accident.-Where the issue of fact relates to the condition of the sidewalk at the time of the injury, the best evidence is said to be evidence of its condition immediately preceding the injury. But, at the same time, it is competent to prove its condition a few days before and a few days after the accident, since this evidence tends to show its condition at the time of the accident.21 This character of

17 Luck v. Ripon, 52 Wis. 193.

19 Moore v. Plattville, 78 Wis. 644; s. c. 47 N. W. Rep. 1055.

18 Elgin v. Anderson, 89 Ill. App. 527.

20 Cumming v. T. A. Gillespie Co., 62 N. J. L. 370; s. c. 5 Am. Neg. Rep. 399; 41 Atl. Rep. 693, 868.

21 Davis v. Alexander City, 137 Ala. 206; s. c. 33 South. Rep. 863 (testimony as to the condition of the street some days subsequent to the date of plaintiff's injury was properly excluded, in the absence of proof that such condition had remained unchanged); District of Columbia v. Gray, 6 App. (D. C.) 314; s. c. 23 Wash. L. Rep. 340; Chicago v. Dalle, 115 Ill. 386; Chicago v. Vesey, 105 Ill. App. 191; Elgin v. Nofs, 200 Ill. 252; s. c. 65 N. E. Rep.

679; Bloomington v. Osterle, 139 Ill. 120; s. c. 28 N. E. Rep. 1068; Strehmann v. Chicago, 93 Ill. App. 206; Hunt v. Dubuque, 96 Iowa 314; s. c. 65 N. W. Rep. 319 (condition one year before not too remote); Jessup v. Osceola Co., 92 Iowa 178; s. c. 60 N. W. Rep. 485; Munger v. Waterloo, 83 Iowa 559; s. c. 49 N. W. Rep. 1028; Baltimore &c. Tpk. Road v. Parks, 74 Md. 282; s. c. 22 Atl. Rep. 399 (a turnpike case); Alberts v. Vernon, 96 Mich. 549; S. c. 55 N. W. Rep. 1022; Canfield v. Jackson, 112 Mich. 120; s. c. 3 Det. Leg. N. 873; 70 N. W. Rep. 444; Fuller v. Jackson, 92 Mich. 197; s. c. 52 N. W. Rep. 1075; 12 Rail. & Corp. L. J. 173; 21 Wash. L. Rep. 378; Lindley v. Detroit, 131 Mich. 8; s. c. 9 Det. Leg. N. 188; 90 N. W. Rep.

evidence is also available to the defendant, and in behalf of the municipality it may be shown that a sidewalk was in an apparently safe condition at the time of and before the accident, to show that it was not chargeable with constructive notice of the particular defect.22

§ 7845. Condition of the Highway at Other Places.-Undoubtedly, the general rule is that evidence that the highway was out of repair at other places than that of the accident, is inadmissible, since it has no tendency to prove whether or not it was in repair at the place of the accident.23 Similarly, evidence on the part of the defendant that the sidewalk crossing at which the accident took place was similar to other

crossings in the same town, is not admissible.24 So, it has been held proper to exclude an inquiry as to how the bridge on which the accident took place compared, on the day of the accident, with respect to safety and state of repair, with other bridges of a like character on roads of a like amount of travel.25 So, in an action against a city for injuries claimed to have been sustained by falling into a stair-opening, because of the insufficient width of the sidewalk, evidence of the width of walks upon other streets is inadmissible, as such evidence would throw no light on the question of the sufficiency of the sidewalk in question, which fact is to be determined by reference to its situation and the amount of travel ordinarily to be expected thereon.26 But it is conceived that where the question is as to the proper construction of the bridge, sidewalk, curb, etc., then it may properly be shown that it was constructed in the usual manner in which such work is done in that and other towns or cities of the like character. Again, when the defects sought to be proved are in the immediate vicinity of the defect in question, the evidence will generally be received as tending to show a general condition that could have been discovered by the exercise of ordinary diligence by officers charged with the duty of seeing that repairs were made. Such evidence is also competent where the particular defect causing the injury cannot be definitely located.28 Thus, where a woman sued the city for an injury sustained by catching her foot in a hole in the sidewalk, and there was clear evidence that the hole was somewhere along the sixty feet fronting a vacant lot, but the particular spot could not be identified, it was held that the plaintiff might show that the principal portions of said sixty feet were in a bad condition

24 Bauer v. Indianapolis, 99 Ind. 56; Hyatt v. Rondout, 44 Barb. (N. Y.) 385.

Red Wing, 76 Minn. 20; s. c. 78 N. W. Rep. 868; Kuntsch v. New Haven, 83 Mo. App. 174; Smallwood v. 25 Bliss v. Wilbraham, 8 Allen Tipton, 63 Mo. App. 234; s. c. 1 Mo. (Mass.) 564. App. Repr. 764; Woolsey v. Ellen

23 Everman v. Menomonie, 81 Wis. ville, 155 N. Y. 573; s. c. 50 N. E. 624; s. c. 51 N. W. Rep. 1013.

27 Osborne v. Detroit, 32 Fed. Rep. 36; Shelbyville v. Brant, 61 Ill. App. 153; Aryman v. Marshalltown, 90 Iowa 350; s. c. 57 N. W. Rep. 867; Ledgerwood v. Webster City, 93 Iowa 726; s. c. 61 N. W. Rep. 1089; Brown v. Owosso, 130 Mich. 107; s. c. 8 Det. Leg. N. 1145; 89 N. W. Rep. 568; Corcoran v. Detroit, 95 Mich. 84; s. c. 54 N. W. Rep. 692; Hayes v. Hillsdale, 113 Mich. 44; s. c. 4 Det. Leg. N. 190; 71 N. W. Rep. 466; Sturgeon v. Sand Beach, 107 Mich. 496; s. c. 2 Det. Leg. N. 749; 65 N. W. Rep. 616; Will v. Mendon, 108 Mich. 251; s. c. 2 Det. Leg. N. 839; 66 N. W. Rep. 58; Lyons v.

Rep. 270; aff'g s. c. 84 Hun (N. Y.) 236; Heiss v. Lancaster, 203 Pa. St. 260; s. c. 52 Atl. Rep. 201; Belton v. Turner (Tex. Civ. App.), 27 S. W. Rep. 831 (no off. rep.); Laurie v. Ballard, 25 Wash. 127; s. c. 64 Pac. Rep. 906; Conrad v. Ellington, 104 Wis. 367; s. c. 80 N. W. Rep. 456; Spearbracker v. Larrabee, 64 Wis. 573; Viellesse v. Green Bay, 110 Wis. 160; s. c. 85 N. W. Rep. 665. But see Bowles v. Kansas City, 51 Mo. App. 416; Ruggles v. Nevada, 63 Iowa 185.

28 Kankakee v. Steinbach, 89 Ill. App. 513; Tice v. Bay City, 84 Mich. 461; s. c. 47 N. W. Rep. 1062.