
    WILLIAM W. YOUNG v. THE DISTRICT OF COLUMBIA.
    No. 13,418.
    — At Law.
    In an action where the declaration is for a personal injury to the plaintiff caused by his falling into an excavation made in a street or highway, it it necessary to prove on the trial that such alleged excavation was within the limits of the street itself.
    STATEMENT OE THE CASE.
    The declaration of the plaintiff sets forth that there is in the city of "Washington a highway called Nineteenth street, which the defendant was bound to keep in such condition as to render it safe for passing and repassiug, on foot or otherwise; yet, nevertheless, the plaintiff says that on the' 13th day of June, 1874, the said street, in its l’oadway and its sidewalk, between B and D streets south, was out of repair and in a dangerous and unsafe condition by reason of the gross negligence aud default of the defendant, of all of which said defendant had notice; yet the said defendant, on the day and date aforesaid, not regarding its duty as aforesaid, wrongfully and negligently permitted aud allowed a certain deep, dangerous, and great excavation to be and remain in said Nineteenth street, aud wrongfully and negligently permitted aud allowed said public street, in its roadway and sidewalk, to be aud remain out of repair and in a dangerous aud unsafe condition, unguarded and without light or signal or other warning, and made no effort to secure the same against accident, or to warn persons passing along aud crossing over said public or common highway and its sidewalk of the existence of said excavation or deep pit, which defendant by its gross negligence suffered and so permitted to be made, and not repaired or guarded, by means of and in consequence of which gross negligence and failure of defendant to perform its duty in the respect aforesaid, the plaintiff then and there, to wit, on the day and year aforesaid, in the night-time, while walking moderately, prudently, and carefully along and over said Nineteenth street, crossing the same, fell, and was precipitated into said excavation or deep pit, whereby he (said plaintiff) fractured and broke the bones of his left ankle, and seriously sprained and bruised his left leg and ankle, and suffered and sustained other grave shocks to his person, by which, &c.
    The plea was, not guilty.
    The proof for the plaintiff tended to show that on the afternoon of July 13, 1874, he, with a friend, went from his residence, at the corner of Second and A streets, to the Eastern Franck, near the Washington Asylum, for the purpose of bathing and fishing; that on their way they crossed Nineteenth street in the neighborhood of the said asylum, but did not notice that Nineteenth street was being graded; that between the hours of nine and ten p. m. they started on their return home, following first a road and afterwards deviating from the road upon what appeared to be a beaten path along the north fence of the asylum ; that the path had, prior to the excavation in Nineteenth street, gone directly across it and over the commons to the improved part of the city; that defendant had excavated Nineteenth street at the point where plaintiff fell, and that-such excavation was nearly, if not quite, perpendicular; that plaintiff and his friend had frequently gone by said path, but neither had been there for a year preceding, and that neither of them saw the excavation, which was about eight feet deep, before they reached it, nor had they noticed it when going down to the wharf, and that the plaintiff had not recovered from his injuries, and probably never would.
    The proof of the defendant establishes the fact that before August, 1873, said Nineteenth street was not actually opened as a highway; that at said date the work of grading and improving said street was begun; that in July, 1874, it had not been graded through and opened; that barricades were constructed at the intersection of G street to exclude travel, and that G street was the only public thoroughfare leading into the street in front of the asylum; that between the asylum and the Eastern Branch there were no streets or buildings hut those belonging to the government; that the plaintiff' was upon the grounds appurtenant to the asylum at the time when the accident complained of occurred to him, but that the portion upon which he was, was not at that time inclosed; but by reason of the work in progress on Nineteenth street, and in the construction of the jail, the fence had been taken down; that the pathway along which the plaintiff proceeded terminated at the gate leading into the asylum, and that the plaintiff, after passing said gate, was not upon a pathway, and did not thereafter follow a pathway up to the point from which he fell; that the defendant fell from within the building line and outside of the limits of Nineteenth street; that he fell from the ground of the Washington Asylum; that at the time he fell the entire space for a sidewalk and carriageway at Nineteenth street, had been excavated in front of the asylum, and for four or five hundred feet south thereof, and for about the distance of a square or more north thereof. It was admitted on the part of the plaintiff' that no highway or thoroughfare was ever laid out on the said reservations east of Nineteenth street upon any of the plans of the city of Washington, or was authorized by any of the ordinances of the said city, or by any enactment of Congress.
    At the close of the testimony, the defendant’s counsel requested the court to instruct the jury, among other prayers, as follows: “That upon the evidence the plaintiff was not entitled to recover; and also, that if, at the time of the accident, the plaintiff was proceeding along a pathway which was not a regularly and legally or authoritatively established highway of said District, and if, so proceeding, he fell into Nineteenth street southeast, and if the accident which happened to him resulted from no imperfection of construction or repair in Nineteenth street southeast, then the plaintiff is not entitled to recover; and also, if the damages complained of resulted from the fact that the grade of the highway called Nineteenth street southeast was below the level of a foot-path which was not a municipal highway, then and in that case the plaintiff is not entitled to recover; and also, that the plaintiff’s declaration alleged that the accident complained of occurred to him while he was walking along and over Nineteenth street southeast, crossing the same, and that while he was so walking he fell into an excavation in said street. If the jury believe from the evidence that there did not exist at the time and place of the accident an excavation in said street; that said street was below the grade of abutting land on either side; and if they further believe that the defendant did not fall from a part of said street into an excavation or pit in said street, but that he fell from land outside of said street into said street, then, and in that ease, the plaintiff cannot recover under his present declaration.”
    All of which prayers, and several others not necessary to mention, the justice presiding at the trial refused to give to the jury; to which refusal the defendant’s counsel excepted before the jury retired. The court thereupon instructed the jury on the measure of damages. The verdict was in favor of the plaintiff.
    
      Bradley & Duvall, for plaintiff.
    The plaintiff will maintain that there was no error in the ruling of the court below.
    First, He says the questiou whether the District can be made liable for injuries resulting to an individual from the imperfect condition of the public highways in said District is no longer an open question in this court.
    Second. They have power to open, grade, and keep in repair streets, avenues, and highways within the District of Columbia. But in doing so they are liable “to the same extent and in the same manner as private corporations and natural persons” for injuries resulting from the manner in which they execute those powers, and must so use them as not to injure that which belongs to another, or improperly invade private rights. They may erect buildings or other works, but if in doing so, for instance, they cause water of a running stream to flow back on private owners, the latter would have their action for damages the same as if the injury had been caused by an individual. (Eastman v. Meredith, 30 N. H., 296; Bailey v. Mayor, &c., of New York, 3 Hill, 541; Thayer v. Boston, 10 Pick., 511; Rhodes v. Cleveland, 10 Ohio, 159; Lacour v. Mayor, &c., of New York, 3 Duer, 406; Brower v. Mayor, &c., of New York, 3 Barb., 254; Treadwell v. Mayor, &c., of New York, 1 Dayly, (N. Y.,) 123; Barnes v. District, 1 MacA., 322.)
    And where “ a municipal corporation has control of a public common traversed by foot-paths, on which the public rightfully travels, it is liable to a common-law action for damages caused by a dangerous and unguarded excavation mia.de by the corporation for its own purposes, in the ground adjoining one of the paths, to a person walking thereon, and who was at the time using due care. (Oliver v. Worcester, 102 Mass., 489, 499. At page 499 read what Gray, J., says. See, also, Savannah v. Cullens, 38 Ga., 334; Parker v. Macon, 39 Ga., 725.) And it was the duty of the corporation to put up guards, signals, or something to give notice of the danger. (Carleton v. Franconia Iron Works, 99 Mass., 216; Bacon v. Boston, 3 Cush., 180; Milwaukee v. Davis, 6 Wis., 374.) The uninterrupted use of the path spoken of by plaintiff' and numerous other persons publicly, by day and night, more than a year before the injury occurred, was an implied invitation and license to plaintiff to use at this time, and no evidence was given of a revocation thereof.
    
      William. Birney, for the District of Columbia.
    The essential averments of the declaration are not sustained by the evidence: (1) That Nineteenth street was a highway, used as such; (2) that it was out of repair; (3) that defendant allowed a dangerous excavation to be in it; (4) that defendant neglected to put up guard-lights or other warning; (5) that plaintiff, while walking along over said Nineteenth street, fell into said excavation; (6) that the accident resulted from the defective repair of said street.
    
      The proofs are: (1) That Nineteenth street was not a highway, used as such, but was in process of preparation for a highway; that the grading was only partly finished, and that the street was not yet opened for public travel, but was barricaded to prevent it; (2) that it was not out of repair where plaintiff fell; (3) that there was no excavation in it; (4) that defendant, for twenty-three days before the accident, had been deprived of the legal power to guard the street; (5) that plaintiff, when he fell, was not walking along and over Nineteenth street, but over grounds outside of said street; that he did not fall into an excavation in said street, but from a high’ bank outside of the street, upon its graded surface, where there was no excavation; (6) that the accident did not result from the defective repair of Nineteenth street, but from the plaintiff’s falling into said street, which was in perfect repair. The plaintiff might possibly frame a good declaration on the facts of his case, but he cannot recover on the declaration filed; the variance between it and the proofs is too flagrant. (Jones v. Boyce, 1 Stark., 493; Eldridge v. L. R. R. Co., 1 Standf., 89.) “The cause of the injury ought to-be fully and correctly stated in the declaration.” (Lund and Wife v. Tyngsboro, 14 Cush., 567.) The plaintiff'cannot recover if he was not on a highway at the time of the accident, and if the accident did not result from a defect of construction or repair of a highway of which the defendant was in charge. (Tisdale v. Norton, 7 Metc., 388; Barber v. Roxbury, 11 Allen, 318; Murphy v. Gloucester, 105 Mass., 470, 599; 1 Allen, 30; Hayden v. Attleborough, 7 Gray, 343.) It was not the duty of defendant to put up at night guard-lights or other warnings on the prison grounds of the ’Washington Asylum, which were elevated above the grade of the street. At the time of the accident the plaintiff was in’ the commission of a trespass on those grounds, and was there at his own risk. (1 Add. on Torts, 228, 229, 232, 260, 292, 375; Hardcastle v. South York R. R. Co., 4 H. & N., 74; 28 Law J. Exch., 139; Blyth v. Topham, Cro. Jac., 159.)
   M.r. Justice Mac Arthur

delivered the opiuion of the court:

The declaration states a good cause of action. It alleges that the injury was caused by a deep, dangerous, and great excavation in Nineteenth street, which the defendant had allowed to remain in said street, in its roadway and sidewalk, and which was unguarded and without any expedient to warn persons passing along and crossing over said highway and its sidewalks. In order to make good this declaration, it was incumbent on the plaintiff'to prove that he was passing along or crossing over Nineteenth street, and that he fell into a pit or excavation in the street itself. It appears by the proof that he was outside of the street, and that he sustained no damage in consequence of any defect or any want of repairs in Nineteenth street. The issue raised by the pleadings was whether the alleged injury resulted from an excavation in the street, and of this there was neither proof nor pretense at the trial. The plaintiff was not travelling on Nineteenth street, but on what he calls a foot-path, at the time of the accident. This foot-path was on the grounds of the Washington Asylum, and within the limits of a government reservation ; and whether the plaintiff had a right to use it after nightfall or not, it is quite certain that it had never been dedicated to the public in such manner as to make the District responsible for damage done to individuals passing over it, or to keep it in repair.

It appears from the testimony that the work of grading and improving Nineteenth street was begun previous to the occurrence for which plaintiff claims damages, but that it had not been graded through or opened; that at the place where the accident occurred a grade of about eight feet deep had been cut, and that the entire space or width of the street, including the carriage-way and sidewalks, had been excavated for four or five hundred feet each way north and south from where the plaintiff fell, and that there was no other street or highway ever laid out on the reservations east of Nineteenth street; that C street was the only public thoroughfare leading into the street in front of the asylum, and that barricades were constructed at the intersection of C street and Nineteenth to exclude travel entirely from the latter daring the progress of the improvement. It also-appears that plaintiff was outside of the limits of Nineteenth street, and that he fell from the grounds of the Washington Asylum. It is, therefore, plain that no damage was caused by any defect on the travelled track of Nineteenth street. The District- had the right to reduce the grade of Nineteenth street southeast, and it was their duty to exclude passengers, on foot or otherwise, while the work Was going on, or at least to give some signal of warning to the public. This they did by barricading C street, which was the only public thoroughfare leading into it in that locality. But the District is uot bound to adopt these precautions in order to signalize individuals who stray out of the public roads and deviate into private paths belonging to other parties. It would be exposing municipal liability to a dangerous responsibility if they were bound to erect barricades where the public have no right to travel. It is only when the dangerous place is so near to the public roads or highways as to make it unsafe for travellers that the District is bound to exercise these precautions, and when individuals leave the roads and highways which are provided for public travel, they must take the risk and be their own guard. Whether an action can be framed upon the special circumstances of this case, we cannot determine; but, for the reasons assigned, we are of opinion that the judgment must be reversed and a new trial ordered.  