sewer to carry off the water, as well as in the mere mechanism of its construction.5 And the liability of a city extends to injury sustained through actual neglect of its agents or servants to use, in the maintenance of a sewer, that care and prudence which a discreet man would use if the risk were wholly his own. This involves the exercise of a reasonable degree of watchfulness in ascertaining the condition of sewers from time to time, and preventing obstructions and dilapidation; but where the city is without fault in this respect, it is not liable for injuries caused by obstructions accumulating in a sewer, unless notice of such obstructions to the city is proved or may be presumed.8 Nor is a city liable for injuries from the mere abandonment of a sewer. It may, in its discretion. discontinue a sewer, 10 and if the inhabitants are not thereby left in a worse condition than if the sewer had never been made, the city will not be liable for injuries caused by the flow of surface water.11

1 City Council v. Gilmer, 33 Ala. 116; Child v. Boston, 4 Allen, 41; McCarthy v. Syracuse, 46 N. Y. 194; and see Munn v. Pittsburg, 40 l'a. St. 364; Stoudinger v. Newark, 28 N. J. Eq. 187.

2 Carr . Northern Liberties, 35 l'a. St. 324; Mills v. Brooklyn, 32 N. Y. 489; Smith v. Mayor etc. 66 id. 295; 23 Am. R. 53.

3 Jones v. New Haven, 34 Coun. 1.

4 Simmer v. City of St. Paul, 23 Minn. 408; Ashley v. Port Huron, 35 Mich. 26; 24 Am. R. 552; Harper e. Milwaukee, 30 Wis. 365; Dorman . Jacksonville, 13 Fla. 538; Donohue r. Mayor ete. 3 Daly, 65; Boston Rolling Mills v. Cambridge, 117 Mass. 396; Savannah v. Waldner, 49) Ga. 316; Merrifield v. Worcester, 110 Mass. 216; 14 Am. R. 592; Bradt v Albany. 5 Hun, 591; Beach v. Elmira, 22 id. 158; City of Joliet v. Harwood, 86 Ill. 110; 28 Am. R. 17.

5 Lewenthal v. Mayor etc. 61 Barb. 511; 5 Lans. 532; Indianapolis v. Huffer, 30 Ind. 235; and see Mayor etc. v. Thompson, 29 Ark. 569. But compare Mills v. Brooklyn. 32 N. Y. 489; Fair . Philadelphia, 88 Pa. St. 309; 32 Am. R. 455; City of Denver v. Capelii, 4 Colo. 25; 34 Am. R. 62.

6 Rowe v. Portsmouth, 56 N. H. 291; 22 Am. R. 464; Masterton v. Mt. Vernon, 58 N. Y. 391. Compare Murphy v. Lowell, 128 Mass. 396; 35 Am. R. 381.

7 McCarthy v. Syracuse, 46 N. Y. 194.

8 Rowe v. Portsmouth, 56 N. H. 291; 22 Am. R. 464; Smith v. Mayor etc. 4 Hun, 637; 6 Thomp. & C. 685; 66 Ñ. Y. 295.

9 City of Atchison v. Challis, 9 Kan. 603.

10 City of Atchison v. Challis, 9 Kan. 603.

11 City of Atchison v. Challis, 9 Kan. 603; Grant r. Erie, 69 Pa. St. 420; 8 A. R. 272; Simpson v. Keokuk, 34 Iowa, 568; Roll v. Indianapolis, 52 Ind. 547; Judge v. Meriden, 38 Conn. 90.

§ 303. Repair of streets.-A charter power to "open and extend" streets includes construction as well as laying out. A general power to make, grade, repair, and improve streets is a continuing one, unless the contrary be indicated, and includes power to grade a street anew; 8 and of the necessity or expediency of its exercise, the governing body of the corporation are the judges.4 But the power to determine what street improvements shall be made, or the power to regulate the general grade of the street, cannot be delegated. A city corporation is not liable for damages, except by statute, for injury to the property of an individual resulting from the exercise by the city authorities, in good faith and with due care, of the lawful corporate power to lay out, grade, or repair streets; and this is held to be so, even where the grading done was unauthorized.8 But as it respects chartered cities or ordinary municipal corporations, they owe to the public the duty of keeping in good order and condition the streets and public ways lying within their corporate limits, 10 and are liable for injuries to persons and property happening by reason of their neglect to do so.11 And it is immaterial how a public street in a city became such, so far as regards the duty of the city to keep it in safe condition. 12 But the liability of a city for defects in streets does not extend to failure to improve a street not needed for the use of the public; 18 nor to injuries received from a defect in a highway while using it merely as a playground; 14 nor to defects, though within the highway, which are out of the traveled path, and not so situated as to affect the safety of travelers; 15 nor to an omission to erect barriers merely to prevent travelers from straying from a highway; 16 nor to obstructions which the city is under no obligation to remove, merely because it has tried to remove them.17 So the liability is limited to the natural consequences of the neglect of duty, 18 and to injuries caused solely by the neglect or defect.19 If the negligence of the plaintiff materially

contributed to the injury, it is a defense.20 And a recovery of damages for a personal injury, caused by neglect to repair a street, should be limited to a compensation for loss of time and expenses incurred in curing the injury, the pain and suffering caused, and any permanent injury sustained. 21 To warrant exemplary damages, the negligence of the authorities must be so gross as to be willful, or as indicating actual bad faith.22 The liability of quasi corporations, such as counties, townships, etc., for defects in highways, is less stringent, 23 and is generally confined to such penalty as may be expressly imposed for the neglect. And in some of the states, incorporated cities are not liable for injuries sustained by private individuals through neglect of the city officers to keep the streets in repair, unless declared to be by their charters.25

1 Sugar Refining Co. v. Mayor etc. 26 N. J. Eq. 247.

2 New Haven v. Sargent, 38 Conn. 50; 9 Am. R. 360; Gall v. Cincin. nati, 18 Ohio St. 563.

3 Karst v. St. Paul etc. R. R. Co. 22 Minn. 118; Wistar v. Philadel phia, 80 Pa. St. 505.

4 Markham v. Mayor etc. 23 Ga. 402; McCormick v. Patchin, 53 Mo. 33; 14 Am. R. 440.

5 Hydes v. Joyes, 4 Bush, 464.

6 State v. New Brunswick, 32 N. J. L. 548.

7 Green v. Reading, 9 Watts, 382; Hovey v. Mayo, 43 Me. 322; City of Delphi v. Evans, 36 Ind. 90; 10 Am. R. 12; Simmons v. Camden, 26 Ark. 276; Dore v. Milwaukee, 42 Wis. 108; Cheever v. Shedd, 13 Blatchf. 258; and see Lee v. Minneapolis, 22 Minn. 13; Burlington v. Gilbert, 31 Iowa. 356; Detroit v. Beckman, 34 Mich. 125; Shaw v. Crocker. 42 Gal. 435; City of Quincy v. Jones, 76 Ill. 231; 20 Am. R. 243; Mayor etc. v Willison, 50 Md. 138; 33 Am. R. 304.

8 Horn v. Baltimore, 30 Md. 218.

9 See Browning v. Springfield, 17 Ill. 143.

10 Griffin v. Williamstown, 6 W. Va. 312; Sterling v. Thomas, 60 Ill. 264; People v. Bloomington, 63 id. 207; Clark v. Lockport, 49 Barb. 580; Meares v. Wilmington, 9 Ired. 73.

11 Blake r. St. Louis, 40 Mo. 569; Dayton v. Pease, 4 Ohio St. 80; Parker". Macon, 39 Ga. 725; Albrittin v. Huntsville, 60 Ala. 486; 31 Am. R. 46; Weed v. Ballston Spa, 76 N. Y. 329; Barnes v. Elba, 32 Wis. 605; Shartle v. Minneapolis, 17 Minn. 308. But see Navasota v. Peace, 46 Tex. 525; 26 Am. R. 279.

12 Phelps v. Mankato, 23 Minn. 276.

13 Craig v. Sedalia, 63 Mo. 417; City of Henderson v. Sandefur, 11 Bush, 550; and see Morgan v. Hallowell, 57 Me. 375.

14 Tighe v. Lowell, 119 Mass. 472; Lyons v. Brookline, id. 491; Blodgett v. Boston, 8 Allen, 237; and see Chicago v. Starr, 42 Ill. 174.

15 Wheeler v. Westport, 30 Wis. 392; Perkins v. Fayette, 68 Me. 152; 28 Am. R. 84. See Blake v. Newfield, 68 Me. 365; City of Atlanta v. Wilson, 59 Ga. 644; 27 Am. R. 396.

16 Puffer v. Inhabitants of Orange, 122 Mass. 389; Sykes v. Pawlet, 43 Vt. 446; 5 Am. R. 25; Chapman v. Cook, 10 R. I. 304; 14 Am. R. 686. But barriers or railings must be erected and maintained at places where necessary to render traveling on the highway safe: Woods v. Groton, 111 Mass. 357; Ward v. North Haven, 43 Conn. 148. And their necessity is a question of fact for the jury: Houfe v. Town of Fulton, 29 Wis. 296; 9 Am. R. 568.

17 Goodrich v. Chicago, 4 Biss. 18; and see Scott v. Des Moines, 34 Iowa, 552.

18 Nichols v. Athens, 66 Me. 402; Smith v. Leavenworth, 15 Kan. 81. 19 Howe v. Lowell, 101 Mass. 99; Shepherd v. Chelsea, 4 Allen, 113. 20 Covington e. Bryant, 7 Bush, 248; Durkin v. Troy, 61 Barb. 437; Lovenguth v. Bloomington, 71 Ill. 238.

21 Jacksonville v. Lambert, 62 Ill. 519; Weisenberg v. Appleton, 26 Wis. 56.

22 Chicago v. Kelly, 69 Ill. 475; Jacksonville v. Lambert, 62 id. 519. 23 Soper r. Henry County, 26 Iowa, 264; Hamilton County v. Mighels, 7 Ohio St. 109; Treadwell v. Comm'rs, 11 id. 190.

24 Waltham e. Kemper, 55 Ill. 346; 8 Am. R. 652; Bussell v. Town of Steuben, 57 Ill. 35; Pray v. Jersey City, 32 N. J. L. 394; Granger v. Pulaski County, 26 Ark. 37; Braham v. Supervisors, 54 Miss. 363; 28 Am. R. 352; Eikenberry v. Township of Bazaar, 22 Kan. 556; 31 Am. R. 198.

25 Winbigler v. Los Angeles, 45 Cal. 36; and see Detroit v. Blackeby, 21 Mich. 84; 4 Am. R. 450; Pray v. Jersey City, 32 N. J. L. 394.

§ 304. Injuries from defective sidewalks.-The duty of a municipal corporation to keep its ways in repair, and maintain them free from defects or obstructions, extends to sidewalks;1 and a city is liable in damages for an injury resulting from a defective sidewalk,2 although it was constructed without authority from the city. And the fact that the plaintiff was at the time intoxicated will not preclude a recovery for the injury, unless such intoxication contributed thereto. A city is, however, only required to keep its sidewalks reasonably safe for persons exercising ordinary care and caution. In the New England states, the liability of towns and cities for injuries resulting from defective streets or sidewalks is wholly statutory; and it is there held, that a town or city is not liable to one injured by a falling sign suspended over the sidewalk.7

1 Reinhard v. Mayor etc. 2 Daly, 243; Higert v. Greencastle, 43 Ind. 574; Furnell v. St. Paul, 20 Minn. 117; Manchester v. Hartford, 30 Conn. 118; Hubbard v. Concord, 35 N. H. 52.

2 Durant v. Palmer, 29 N. J. L. 544; Cusick v. Norwich, 40 Conn. 375; Omaha v. Olmstead, 5 Neb. 446; Weare v. Fitchburg, 110 Mass. 334. 3 Higert v. Greencastle, 43 Ind. 574. See Boucher v. New Haven, 40 Conn. 457.

4 Healy v. Mayor etc. 6 Thomp. & C. 92; 3 Hun, 708; and compare Alger v. Lowell, 3 Allen, 402; Stuart v. Machias Port, 48 Me. 477.

5 Chicago v. McGiven. 78 Ill. 347. As to what is reasonable care in removing ice and snow from sidewalks: See McLaughlin v. Corry, 77 Pa. St. 10; 18 Am. R. 432; Collins v. Council Bluffs, 32 Iowa. 324; 7 Am. R. 200; Todd v. City of Troy, 61 N. Y. 506; 61 Barb. 580; Cook v. Milwaukee, 24 Wis. 270; 1 Am. R. 183; Savage v. Bangor, 40 Me. 176.

6 Reed v. Belfast, 20 Me. 248; Chidsey v. Canton, 17 Conn. 475; State v. Burlington, 36 Vt. 521; Eastinan v. Meredith, 36 N. H. 284; Hixon v. Lowell, 13 Gray, 59; Oliver v. Worcester, 102 Mass. 489; Cromarty v. Boston, 127 Mass. 329; 34 Am. R. 381.

7 Jones v. Boston, 104 Mass. 75; 6 Am. R. 194; and see Taylor v. Peckham, 8 R. I. 349; 5 Am. R. 578; Hewison r. New Haven, 37 Conn. 475; 9 Am. R. 342. But compare Grove v. Fort Wayne, 45 Ind. 429; 15 Am. R. 262.

§ 305. Liability as affected by notice.-The liability of a city for an injury caused by a defect in a public street or sidewalk extends only to a defect of which the city has had actual notice, or which has existed long enough or notably enough for notice to be reasonably inferred.2 But the rule as to notice has no application to a case where the ignorance of the defect is the result of a clear and unmistakable omission. If the exercise of a proper supervision would have led to the discovery of a defect in season to repair it or to protect the public against it, there is the same liability for an injury caused by the defect as if there had been actual knowledge of it. But where cities and towns are under no obligation to light highways,5 mere notice to a lamp-lighter of a defect in a sidewalk does not warrant a finding that the city had notice thereof.6

1 Donlon v. Clinton, 33 Iowa, 397; Jansen v. City of Atchison, 16 Kan. 358; Fort Wayne v. DeWitt, 47 Ind. 31

2 Dewey v. Detroit, 15 Mich. 307; Moore v. Minneapolis, 19 Minn. 300; Hall r. Manchester, 40 N. H. 410; Ward e. Jefferson, 24 Wis. 342; Fahey r. Howard. 62 Ill. 28; Atchison r. King. 9 Kan. 550; Chicago v. McCarthy. 75 Ill. 602; Todd v. City of Troy, 61 N. Y. 506; and see Nea man v. Mayor etc. 3 Daly, 147; Schweickhardt v. St. Louis, 2 Mo. App.

571.

3 Boucher v. New Haven, 40 Conn. 457; and see Alexander v. Mt. Sterling, 71 Ill. 366.