Abstracts 4, 12, and 13. In instruction 4 the court charged the jury as follows: "But, if such wire was down only for one day prior to the alleged injury, this would not be long enough to charge and bind the city with implied notice; and unless you find from the evidence that the city had actual notice or implied notice of the fact of such wire being down, in a dangerous condition, then you cannot find for the plaintiff." Instruction 12 contains the following language: "If the city did not learn of the wire in question being out of repair until four o'clock, or after, in the evening, it would not be negligence in the city to delay repairing said wire until next morning." In instruction 13 it is said: "If you believe the wire in question was in place and working condition at noon of the day of the alleged injury, and thereafter, and some time prior to the time of the alleged injury, for some cause fell to the ground, this would not be enough to charge or bind the city with implied notice of the condition of such wire as charged by the plaintiff. And if you believe from the evidence that such wire was in place and in working condition at noon, or thereafter, of the day of the alleged injury, and the city had no notice or knowledge until noon, or thereafter, of the day of the alleged injury that said wire was down, then the city did not have constructive notice of the condition of such wire; and you will then inquire as to the actual notice, if any, the city had." Counsel for plaintiff in error contend that these instructions invade the province of the jury, and are misleading and prejudicial to the plaintiff. We agree with the contention of plaintiff in error in this respect. It is the duty of a city to keep its streets reasonably safe for public travel thereon at all times, day and night. It was the province of the jury, not the court, to determine whether the officers of the city had notice, either actual or constructive, of the condition of this wire for a sufficient length of time to have permitted the same being repaired before the injury occurred. And it was not the province of the court to fix any definite length of time at which the officers of the city must have had notice of the fallen condition of this wire prior to the injury to plaintiff, in order to render the city liable. There are statutory provisions in certain states charging the city with knowledge of a defect in its streets which has existed for a period of 24 hours prior to the time the injury occurred. Monies v. City of Linn, 121 Mass. 442; Hanscom v. City of Boston, 141 Mass. 247. 5 N. E. 249; Hinckley v. Somerset, 145 Mass. 326, 14 N. E. 166. No such statutory provisions, however, exist in this state, and decisions based upon such statutory provisions have no application to the case at bar. The instructions given were both erroneous and prejudicial to the rights of plaintiff, and the judgment must therefore be reversed. It is so ordered. All the justices concurring. Abstracts Rogers v. City of Williamsport. (Supreme Court of Pennsylvania, May 27, 1901.) [49 Atl. Rep. 293.] Personal Injuries-Defective Sidewalk -Notice.-A city is not liable for injury from a defective sidewalk, it not having had actual notice of the defect, and there being no evidence from which constructive notice could be inferred, the sidewalk having been repaired 18 days before the accident, and there being no evidence as to when it again got out of repair. Appeal from court of common pleas, Lycoming county. Action by Robert Rogers against the city of Williamsport. Judgment for defendant. Plaintiff appeals. Affirmed. W. H. Spencer and Clarence L. Peaslee, for appellant. PER CURIAM. This suit was brought to recover damages for injuries received by a fall upon a sidewalk in the city of Williamsport. On the trial of the case, and at the close of the evidence on which the plaintiff relied for a recovery of damages for injuries received by his fall, the defendant's counsel moved for a compulsory nonsuit, which was allowed by the court. It clearly appears in the opinion of the court refusing to take off the nonsuit that the city was not in any sense responsible for the plaintiff's fall. It was plainly stated in said opinion that it was not alleged that the defendant had actual notice of the displacement of the plank which caused the accident, and that there was no evidence from which constructive notice could be inferred. The result was an affirmance of the nonsuit, and an appeal by the plaintiff to this court. A careful reading of the testimony in the case shows that the conclusion of the court was completely warranted by it. The uncontradicted evidence was that the city, through its officials, notified the property owner to repair the sidewalk; that the notice was served upon him in July or August, and the sidewalk was repaired on the 12th of September, or 18 days prior to the plaintiff's fall. There was no actual or constructive notice of nonrepair during that period. No negligence was properly imputed to the city, and there was some evidence tending to establish contributory negligence on the part of the plaintiff. Judgment affirmed. Stainback v. Mayor, etc., of City of Meridian. Failure to Replace Bridge-Personal Injuries-Sufficiency of Declaration. A declaration in an action against a city alleged that a bridge over a ditch in a thickly-inhabited portion of the city, which was used by the public and by school children, was removed, and the ditch widened, and dug to the depth of 10 or 12 feet, and that the city failed to replace the bridge, but negligently placed one or two planks, Abstracts 8 or 10 inches wide, over the ditch, without fastening the ends thereof, and that, after it had remained in such condition for six months, the plaintiff, who was a minor, without knowledge of the danger, fell to the bottom of the ditch, and received severe injuries by a plank turning while she was crossing on her way to school: held, that the declaration stated a cause of action, and was not demurrable for want of facts showing negligence of the city. WHITFIELD, C. J. If the evidence shall sustain the allegations of the declaration, the plaintiff is entitled to recover. The declaration states a good cause of action, and the demurrer admitting it should have been overruled. The case stated called for proof, not a demurrer. Reversed and remanded. Mayor, etc., of City of Meridian v. Stain back. Personal Injuries-Ditch in Street-Contributory Negligence.-Where planks were placed over a ditch in a street for the convenience of the city employees in hauling rocks across the ditch, and barricades were erected to warn the public of the danger of crossing, one passing the barricades and sustaining injuries by the giving way of the planks while crossing them cannot recover from the city. Appeal from circuit court, Lauderdale county; G. Q. Hall, Judge. S. A. Witherspoon, for appellant. WHITFIELD, C. J. Without detailed analysis of the instructions, we feel constrained to say that on the evidence in this case the verdict should have been for the defendant. The basis of appellee's claim was that the planks had been put there as and for a passageway for pedestrians. There is no proof to support this allegation. It is clearly shown that barricades were put across the street to warn the public of the danger of crossing, and that these planks were put across for the convenience of the city employees in hauling rocks across the ditch. It would seem that the school children—one of whom says it was very dangerous to cross-went in between the barricades and the ditch, and thus across on the planks. If one chose, in spite of the barricades, and the warning they spoke, to take the risk of crossing, the city cannot be held for the consequences of such rashness. The reasoning that, though the city did not originally lay the planks down as a crossing for pedestrians, yet if persons wrongfully crossed on them, and the city knew of this wrongful crossing, and its constant repetition, and did not object, it is bound, is not sound. Repetition of an unlawful act, resulting in damage, cannot confer a right of action because of such damage. Besides, that is not the case made by the declaration. Unless on proper amendments, and very different proof, a good case can be made out, the suit must fail. Reversed and remanded. TERRAL, J., takes no part in this case. Abstracts City of Columbus v. Griggs. (Supreme Court of Georgia, May 24, 1901.) [38 S. E. Rep. 953.] Personal Injuries-Defective Streets-Contributory Negligence. - One who knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, cannot hold another liable for damages resulting from a hurt thus occasioned, although the same may be in part attributable to the latter's negligence. Error from superior court, Muscogee county; W. B. Butt, Judge. Action by W. H. Griggs against the city of Columbus. Judgment for plaintiff. Defendant brings error. Reversed. Francis D. Peabody and L. F. Garrard, for plaintiff in error. McNeil & Levy, for defendant in error. Granting that the negligence of the city was fully established, it is certainly true that Dr. Griggs and his companion were wanting in ordinary care and diligence. They both knowingly and deliberately took a risk the danger of which, to any person of common prudence, would have been plain and obvious. It further appeared that they did so without excuse; for there was no emergency constraining them to travel over the dangerous place, and they had the choice of other routes to their destination, some of which were perfectly safe, and any one of which was, under the circumstances, unquestionably safer than that which they chose. The law by which this case should be controlled was fully discussed by the writer in Samples v. City of Atlanta, 95 Ga. 110, 22 S. E. It is, in substance, that a traveler exercising due care may, although he knows there is some danger in driving over a defective portion of a street which a city had negligently failed to put in safe condition, recover for injuries thus sustained, unless the danger is obviously of such a character that driving over the place in question, in and of itself, amounts to a want of ordinary care and diligence. Certainly a man cannot heedlessly rush into grave peril, of the existence of which he is perfectly aware, and then hold any one else, whether negligent or not, responsible for the consequences. The court below ought to have granted a new trial on the ground that the verdict was not warranted by the evidence. Judgment reversed. All the justices concurring. Lenich v. Beaver et al. (Supreme Court of Pennsylvania, May 27, 1901.) Sidewalk-Excavation by Abutting Owner-Personal Injuries—Liability of Abutter.-Defendants' testatrix was the owner of land along which the city required her to lay a sidewalk. An excavation was Abstracts accordingly dug, some 12 to 15 inches in depth, sloping downward to that extent in a distance of from 3 to 5 feet. Plaintiff's witnesses testified that in the evening they placed two stakes, in the form of an X, at each end of the excavation, and laid a board 1 inch thick, and about 6 feet long and 6 inches wide, across them. No light was left there. There was testimony as to the entire absence of barriers, but two of plaintiff's witnesses admitted that barriers were erected. It appeared probable from the testimony that they were afterwards removed. Plaintiff, while going to his polling place at 6:45 p. m. on November 8th, fell into the excavation and was injured: held, that a verdict for plaintiff would not be disturbed. Appeal from court of common pleas, Lebanon county. Action for personal injuries by William Lenich against C. Grove Beaver and others, executors of Anna Beaver, deceased. From a judgment for plaintiff, defendants appeal. Affirmed. Lee L. Grumbine and Howard C. Shirk, for appellants. George B. Woomer, for appellee. PER CURIAM. The plaintiff alleged that he received serious injury through the negligence of the defendants. The evidence presented on the trial related to questions of fact which were for the determination of the jury. The instructions which the jury received from the court in its general charge, together with its answers to the defendants' points, were impartial and free from error. It was shown by the verdict of the jury that the plaintiff's allegation of negligence was sustained by the evidence, and that there was no negligence on the part of the plaintiff which contributed to the injury he received. As there is therefore no cause for reversal of the judgment, the assignments of error are dismissed. Judgment affirmed. Hart v. Mayor, etc., of City of Union City. Personal Injuries-Death of Policeman-Evidence.-Plaintiff's husband, a night policeman, was found dead on the floor of the city calaboose, with nothing to positively indicate the cause of his death. He had complained of heart trouble, and there were two small burns on one of his hands. The evening before he had obtained a new globe for the electric drop cord in the station house, which was found in his pocket after his death. The drop cord carried only a limited number of volts, not dangerous to a well man. There was a primary line of wire near the other, which, if crossed with the drop cord, would convey the current of both to one touching the drop cord. There had been disturbances during the day on the wires on the same short line with the calaboose, but it was shown by experiments made after deceased was found that there was no crossing of the wires, or anything else which would make them dangerous: held, in an action against the city for his death, that any presumption as to the cause of death from the position of the body was overcome by the proof that the wires were in good condition. Error to circuit court, Obion county; W. H. Swiggart, Judge. Action by Sallie Hart against the mayor and aldermen of |