ting on the street; that he was required by an ordinance passed by the board of trustees of the town to improve the sidewalk in front of his lot; that the only connection the town had with the improvement was to enact the ordinance and notify White to proceed under it to make the improvement; that he proceeded in accordance with the ordinance and notice; that he tore up the sidewalk, and made the excavation into which the plaintiff fell; that when the work was left on the night of September 22, 1885, White placed near it a good and sufficient danger-signal, and "used all the care and diligence he possibly could do in the prosecution of the work and in the placing of a danger mark, warning, and signal at the excavation; and that the plaintiff, carelessly, recklessly, and wholly disregarding said signal, and without any fault on the part of White," went into the excavation.

This answer is unquestionably good. It is good because it shows that the plaintiff was guilty of contributory negligence. It is good because it shows that White was not guilty of any negligence. In cases like this, only ordinary care is required of a municipal corporation, its agents, and contractors, and ordinary care does not require that a watch be kept during the night over an excavation, unless there are circumstances peculiar to the particular case making it necessary. As a general rule, it is sufficient to show that proper signals or secure guards were placed about an excavation on quitting work, and neither the corporation nor its contractor is liable if a wrong-doer removes the signals during the night: Doherty v. Waltham, 4 Gray, 596; Shearman and Redfield on Negligence, sec. 360.

The difficult and controlling question arises on the ruling denying a new trial. The evidence shows that the work was done by the property owner, White, under an ordinance passed by the board of trustees, and that the corporate authorities had no notice of the excavation. If White is to be regarded as occupying the position of an independent contractor, then it is quite clear that to fasten a liability on the town it must be shown that the work was intrinsically dangerous, or that the town authorities had notice of the danger, or were negligent in not acquiring notice: Ryan v. Curran, 64 Ind. 345; 31 Am. Rep. 123; Corporation of Bluffton v. Mathews, 92 Ind. 213; City of Evansville v. Wilter, 86 Id. 414; City of Madison v. Baker, 103 Id. 41; 2 Dillon on Municipai Corporations, 3d ed., secs. 1025, 1029.

There is no evidence that the improvement was intrinsically dangerous, nor is there evidence that the corporate authorities had notice, or were negligent in not acquiring notice. The case cannot, therefore, be maintained unless the act of the property owner be deemed that of the town.

On the one side it is contended that the act was not that of the town, but of a person standing substantially in the position of an independent contractor, and that the town did no more than it had a lawful right to do in enacting the ordinance; while, on the other side, it is contended that the act of the property owner was the act of the municipal corporation, and that the corporation is liable for his negligence.

It is quite well settled that a municipal corporation is not liable for legislative or judicial acts: City of Terre Haute v. Hudnut, 112 Ind. 542. It is only where the corporation performs ministerial acts that it can be held liable for negligence. There is, therefore, nothing in the act of the board of trustees in enacting the ordinance directing the making of the improvement upon which a cause of action can be based. If there is any liability at all, it must be because of some negligence in the discharge of ministerial duties.

It

We think that the authority of a town extends to sidewalks, and that their liability is commensurate with their duty. is beyond controversy that a sidewalk is part of a street, and consequently a statute referring to streets embraces sidewalks: State v. Berdetta, 73 Ind. 185; 38 Am. Rep. 117; City of Kokomo v. Mahan, 100 Ind. 242; 2 Dillon on Municipal Corporations, sec. 780, note 1.

It is clear that the town has authority over sidewalks, and is under a duty to use ordinary care to keep them in a reasonably safe condition for use by those who exercise ordinary care. This appeal cannot, therefore, be disposed of, as appellee's counsel affirm, upon the ground that the corporate duty does not extend to sidewalks.

If the acts of White are to be regarded as those of the town, then there may be a liability for his negligence without proof of notice, as it is the duty of the town to exercise ordinary care in performing work undertaken by it. But in our judgment the acts of a property owner who improves a sidewalk under an ordinance of a town cannot be deemed the acts of the town in such a sense as to charge the town with his negligence. In order to charge the corporation, evidence of the negligence of the property owner must be supplemented by .

evidence that the town authorities were negligent, or that the work directed to be done was intrinsically dangerous.

The statute expressly authorizes the board of trustees to compel abutting lot-owners to improve the sidewalks. It is, indeed, doubtful whether the board has power to cause the improvement to be made in any other method. The statute reads thus: "Whenever, in the opinion of the board of trustees of any incorporated town in this state, public convenience requires that the sidewalks of any street in such town should be graded, or paved, or planked, such board of trustees may by an ordinance, compel the owners of lots adjoining such street to grade, pave, or plank the same": R. S. 1881, sec. 3357.

This statute requires the corporate authorities, in cases where they proceed under it, to compel the property owners to make the improvement, and does not invest them with author-; ity to select the persons who shall do the work. Under this statute there is no authority vested in the municipal authorities to choose agents or servants to do the ministerial work; that is left with the property owner. Where there is no right of selecting or choosing, the relation of principal and agent cannot exist; and where the relation of principal and agent does not exist, the maxim respondeat superior cannot apply.

It is therefore logically inconceivable that a municipal corporation, which is itself free from fault, should be held responsible for the negligence of a person not voluntarily chosen by it to perform an act. The authorities are harmonious upon this point, for all agree that where the person, artificial or natural, is not vested with the authority of selecting, the maxim respondeat superior has no force: Summers v. Board etc., 103 Ind. 262; 53 Am. Rep. 512, and cases cited; Bryant v. City of St. Paul, 21 Cent. L. J. 33, and cases cited, note; 2 Dillon on Municipal Corporations, 3d ed., secs. 974, 1028.

Judgment affirmed.

POWER OF CITY TO IMPROVE STREETS AT EXPENSE OF LOT-OWNERS: Dean v. Charlton, 99 Am. Dec. 205.

DUTY OF MUNICIPAL CORPORATION TO MAINTAIN GUARDS AND LIGHTS ABOUT EXCAVATION IN STREET OR SIDEWALK UNDERGOING REPAIRS: Kimball v. City of Bath, 61 Am. Dec. 243, and note 245; Manderschid v. Dubuque, 4 Am. Rep. 196; Bassell v. St. Joseph, 14 Id. 446; Niblett v. Nashville, 27 Id. 755; Hubbell v. Yonkers, 58 Id. 522.

LIABILITY OF MUNICIPAL CORPORATION FOR ACTS OF ITS OFFICERS: Hilsdorf v. St. Louis, 100 Am. Dec. 352, and note 357-360; City of Richmond v. Long, 94 Id. 461, 468.

SISK V. CRUMP.

[112 INDIANA, 504.)

ACT OF PERSON ERECTING BARBED-WIRE FENCE on his own land, along line of highway, does not of itself render him liable to one who thereby sustains an injury; but the rule is otherwise if the fence is constructed and maintained in such a manner as to make the person erecting and maintaining it guilty of negligence.

ONE WHO NEGLIGENTLY CONSTRUCTS AND KNOWINGLY MAINTAINS BARBEDWIRE FENCE in dangerous condition, between his land and the adjacent highway, is liable for an injury thereby occasioned to domestic animals lawfully running at large, and which are attracted within the inclosure by the presence of other animals and growing pasture. F. T. Hord and M. D. Emig, for the appellant. W. F. Norton and S. W. Smith, for the appellee.

By Court, ELLIOTT, J. Stated in a condensed form, the material allegations of the appellant's complaint are these: On and prior to May 5, 1885, the appellee owned fifteen acres of land, bounded on the east by a public street of the city of Columbus, and along the line of this street he had constructed a barbed-wire fence. The fence was composed of wooden posts and five strings of barbed iron wire. It was negligently constructed, the posts being insufficient to keep the wire at a proper tension, and the wires were not drawn into proper position. The wires were armed with sharp iron barbs placed along them at a distance of two inches apart. They were negligently suffered to sag down near the ground. They hung loosely from the posts, and in such a condition as that a horse coming in contact with them would be entangled and thrown down. The fence was not such as a good husbandman would construct or maintain, but was insufficient and dangerous, its height not being sufficient to keep off horses or cattle, and there being no plank or other thing to warn them of the existence of the fence. The fence could have been made safe by placing a board along the top of it, and the wires could have been kept at a proper height and tension, but the defendant, knowing its dangerous condition, suffered it to remain insufficient to warn off animals. It was not sufficient in height, as the defendant knew, to prevent animals from attempting to cross it. On the fifth day of May, 1885, the horse escaped from the stable of the plaintiff, in which it had been fastened, and, without fault on her part, wandered upon the street bounding the defendant's land. At that time the land was covered with green grass, on which the horses of the

appellee were feeding. The appellant's horse was attracted by the green pasture and the horses feeding on it, and attempted to cross into the field. In attempting to cross the fence, it was, by reason of the dangerous and unsafe condition thereof, entangled in the loose wires, thrown down, and killed. The proper county and city officers had, by orders duly made, authorized owners of horses and cattle to permit them to run at large.

The complaint cannot be upheld on the ground that erecting a barbed-wire fence along the line of a highway, but on private property, is in itself an actionable wrong. The courts cannot say, as matter of law, that erecting such a fence is a tort. We cannot, therefore, yield to the contention of counsel that the act of an individual in erecting a fence of that kind in itself renders him liable to one who sustains an injury. Courts cannot judicially know that such a fence is dangerous. Our statute recognizes the right to use such fences, for it is expressly provided that railroad companies may use them in fencing their tracks: Act of 1885.

The complaint before us, however, does not rest solely on the theory that the erection of a barbed-wire fence is necessarily a tort. It goes much further, and with great particularity avers that the fence was so constructed as to be dangerous to horses and cattle passing along the highway. Nor does it stop there. It avers that beyond the fence was growing grass, on which horses were feeding, and that these things would attract horses, and induce them to attempt to cross the fence and enter the inclosure. There are, therefore, two important elements to be considered: 1. The negligence in constructing and knowingly maintaining a dangerous fence along the line of a highway; 2. The probability that animals would be attracted by what they saw within the inclosure, and would probably attempt to enter it.

These two elements exert an important influence upon that branch of the case which presents the question whether the appellee's act was culpably negligent.

It is well settled that a lawful act may be done in such a negligent manner as to make the person who does it a wrongdoer. It may be, therefore, that although erecting a barbedwire fence is not in itself a tort, yet the manner in which it is constructed and maintained may be such as to make the person erecting and maintaining it guilty of negligence. A thing may not be dangerous if properly constructed, but dan