
    No. 9620.
    McPhail v. Seerie Brothers Construction Company.
    Plaintiff having ridden into an excavation made by another than defendant has no action against defendant. The contention that a fence erected by defendant around a building in course of construction had produced or contributed to plaintiff’s injury was rejected upon the ground that the fence was lawfully constructed and was maintained only for a reasonable time.
    
      Error to Denver District Court, Hon. Charles C. Butler, Judge.
    
    Mr. Duncan McPhail, Pro Se.
    
    Méssrs. Bartels & Blood, for defendant in error.
   Mr. Justice' Allen

delivered the opinion of the court.

This is an action for damages for personal injuries. A judgment on the pleadings was rendered in favor of The Seerie Brothers Construction Company, one of the defendants. To review such judgment, plaintiff brings error.

In our opinion the facts admitted in the pleadings are sufficient to warrant the judgment of the trial court. The above named defendant, at the time of the injuries complained of, was engaged in the construction of a búilding on 17th and Champa Streets, in the City of Denver, and in compliance with an ordinance, erected and maintained a tight board fence upon such streets, along the building under construction. No facts are alleged in the complaint showing that the fence was maintained for an unreasonable length of time, or that it was not properly situated, but the contrary appears from the admitted facts. It appears to be conceded that the defendant, under the circumstances, had the right to construct and maintain the fence. The plaintiff was injured while riding a bicycle on 17th Street and falling into an excavation located near the place1 where the street was partially obstructed by the fence. The excavation had been made by The Western Union Tele.graph Company. We fail. to find any material issues framed by the pleadings which, if found for the plaintiff, would render the Construction Company liable.

The judgment is affirmed.

Affirmed.

Chief Justice Garrigues and Mr. Justice' Bailey concur.  