curred, and the question of contributory negligence. As to the former it is claimed that, since the planks were 32 feet in length, and the traveled track was not to exceed 10 feet in width, there must have been a considerable length of plank at each end extending beyond the traveled track, or, if the plank was defective at one end, there was ample space to cross nearer the other end. If a plank is laid across a traveled track 10 feet wide at an angle of 23 degrees, it will take nearly 26 feet to extend across it. Assuming the traveled track to be exactly in the center, the 32-foot plank would at each end extend 3 feet beyond it. But, owing to the acute angle, only a relatively slight variation in the direction of the traveled track would throw it beyond the ends of the planks. Defendant also argues that it is highly improbable that plaintiff's car was deflected by the rail as she claims. This would be so if the crossing were at right angles or nearly so, as most crossings are. But she was attempting to cross at an angle of 23 degrees. A rail only 4 or 5 inches high might well deflect a light Ford machine going at the slow speed of only about 12 miles per hour under such conditions.

784

The defendant's railroad crossed a public highway, and it constructed a crossing there which was at an elevation of 10 feet above the grade of the highway. A statute required that the company construct the crossing 20 feet in width on both sides of the track. There was evidence that the width of this one was only 17 feet up near the track, and a short distance from the track converged to a width of about 12 feet, and that the greater portion of the embankment was of the latter width. The statute also provided that the grade of such crossing should be of such slope as should be necessary for the safety and convenience of the traveling public; and that the company should restore every highway which it crossed to its former state or to such condition as that its usefulness should not be materially impaired, and to so maintain the same. The crossing in question was steep and difficult.

Plaintiff, accompanied by his wife, was driving in an automobile, and approached this crossing from the west. He had never been over it before, and did not know anything about the approach on the east side of the track. It was apparent to plaintiff that the grade was steep and somewhat narrow, and that some work of construction or repair had recently been done upon it. Plaintiff's automobile was a five-passenger car of standard width. On reaching the foot of the approach on the west side of the railroad, he was about 75 or 80 feet distant from the track; but, owing to the height of the embankment and the steepness of the descent, he could not see over the railroad track and down or along the approach on the east side. Just as plaintiff's automobile passed upon the railroad track, he for the first time had a view of the east approach, and observed that this was narrow and very steep, and that another automobile containing four persons had stopped at the foot of the approach, and that the driver of that car was engaged in cranking the automobile. The man thus

84 Smith v. Illinois Cent. R. Co., 162

Wis. 120, 155 N. W. 933 (1916).

engaged shouted, and plaintiff applied the brakes and stopped his car, the rear wheels of which were then on the track.

Plaintiff testified that about this time he observed a speeder or track velocipede about 40 rods away approaching the crossing upon the railroad track from the north or left side, and that he therefore concluded to get the automobile off the track. Plaintiff further testified that the east approach was so steep that he did not dare to go over on the east side, for fear his automobile would slide down and collide. with the automobile at the foot of the approach; that he therefore stated to the driver in the other automobile that he would back over to the west side of the railroad track, and see if he could not arrange to let him pass. Plaintiff thereupon backed his automobile as slowly as possible, carefully observing the hind wheels, so as to be certain not to get too close to the edge of the embankment. When the automobile had reached a point where the front wheels were about 8 or 10 feet west of the railroad track, and the outer hind wheel 18 inches or 2 feet from the edge of the embankment, the earth of which the grade was constructed suddenly gave way, and slid down the side, carrying the automobile with it. This occurred so suddenly that plaintiff did not have time to escape from the car, and when it reached the bottom of the embankment it toppled over, and plaintiff was caught beneath the side of the car and the earth beneath.

In affirming judgment for plaintiff, the court held that the question of his contributory negligence was for the jury, and that the negligence of the defendant was the proximate cause of the injury, rather than the failure of the township officials to construct and maintain a roadway at the foot of the easterly approach of such width as to furnish room for two vehicles to pass.8 85

§ 1023. Rope stretched across highway. Where an automobile operator drives his machine at a negligent rate of speed in a city street, and, without exercising ordinary diligence for his own safety, collides with a rope stretched across the street by the city for the purpose of closing the street to travel, a verdict in favor of the city will be sustained.86

In an action to recover for injuries incurred by the plaintiff when an automobile in which she was riding ran against a rope, stretched across a public highway by county road officers, there was evidence that the automobile was moving 12 miles an hour, which was less than was permitted by statute; that the operator was looking straight ahead and did not see the rope until he struck it; that the place where the rope was stretched was somewhat dark; and that there was no sign, other than the rope itself, to indicate the presence of the rope. It was held that, whether it was negligence to stretch a rope

85 Felton v. Midland C. R. R., 32 N. D. 223, 155 N. W. 23 (1915).

86 Holliday v. Athens, 10 Ga. App. 709, 74 S. E. 67 (1912).

The question of contributory negli gence may or may not be for the jury. Nashville, C. & St. L. Ry. v. Blackwell, 201 Ala. 657, 79 So. 129 (1918).

Employer permitting employees use of lot to play ball, not liable for injury caused by rope stretched across highway by employees. Brooks Henrietta Mills, 182 N. C. 719, 110 S. E. 96 (1921).

V.

across a highway in this manner was a question for the jury; and judgment in plaintiff's favor was affirmed.87

The village of Edgerton had a celebration on August 27, 1915. At the intersection of Main street, running north and south, and Maple street, running east and west, a temporary band stand was erected. It was some 4 or 5 feet high, and about 24 feet wide, east and west, and extended to within 10 or 15 feet of the north cross-walk of Maple street. The streets are about 100 feet wide, including sidewalks. This left a passage in the vehicle traveled part of Main street of, at least, 25 feet on each side of the band stand. But to prevent travel there, while any feature of the celebration was taking place upon or about the stand, ropes were stretched across the streets. One of these ropes passed from a telephone pole at the east sidewalk of Main street to a telephone pole at the west sidewalk at about the place of the north cross-walk of Maple street. The rope was stretched at about the height of 5 feet. To it was tied flag on either side of the band stand, and also some streamers. About 2:30 in the afternoon the plaintiff, Mr. Ihlen, a man 72 years old, with his wife, 10 years younger, came to Edgerton in their automobile, Mr. Ihlen driving. They drove south on Main street towards Maple street. They failed to see the rope in time, and drove against it. The windshield and top of the automobile were damaged, and some injuries inflicted on both occupants. Each sued the village, alleging an unlawful and negligent obstruction of the street as the cause of the damage sustained.

Held, that the case was for the jury, and verdicts for plaintiffs were sustained.88

A city is within its rights in roping off part of a highway deemed

87 Latimer v. Anderson County, 95 S. C. 187, S. E. 879, 8 N. C. C. A. 924n (1913).

Held, a question for the jury whether decedent was negligent in driving against a rope stretched across a street by defendant, the rope having been lowered by defendant's employees on previous occasions for him to pass, when he drew near. "Prima facie the defendant had no legal right to occupy the whole of the roadway of the street for something like three days, and thus interfere with the public user thereof. But, assuming that such right existed, so far as the decedent was concerned, the company was bound to exercise it in such a way as not to jeopardize people traveling on street; and this duty they owed to the decedent." Rohan v. American Sugar Refining Co., 94 N. J. L. 256, 109 Atl. 346 (1920).

the

The petition alleges that the plaintiff at the time of his alleged injury was driving his car along a public highway. A traveler, in the absence of notice to the contrary, has a right to use it and to assume that it is rea

sonably safe and free from obstructions. Nothing shown in the petition could indicate that the plaintiff was a trespasser, on account of the county authorities having closed the highway pending the making of repairs thereon for it by the defendant. On the contrary, the petition shows that "there was no other barrier or obstruction of any kind or character or anything else to indicate that said public road was closed or to call attention to the fact that said wire was so suspended. The nature and character of the alleged obstruction, as consisting of a "small cable wire," which the petition alleged the defendants had stretched across the highway, is sufficiently described. Especially is this true since more detailed information as to its character would lie more particularly within the knowledge of the defendants, who it is alleged had strung it. Demurrer to petition was properly overruled. Dixon v. Johnson, 27 Ga. App. 699, 109 S. E. 519 (1921).

88 Ihlen v. Edgerton, 140 Minn. 322, 168 N. W, 12 (1918).

unsafe for travel, and if the barrier is of such a nature as to be clearly visible to persons driving at night, there is no liability for so doing. Whether placing a rope across a street above the range of the direct rays of automobile lamps, and marking its location by a single red light placed near the curb and about 25 feet beyond the rope, is the exercise of due care by the city is for the jury. Violation of the statutory requirements as to lights, would not necessarily defeat the driver's action for injuries.89

Persons who loaded logs on side of road by means of a chain extending across road so that when taut the chain was about six feet above the ground, and who gave automobile driver who approached chain no warning thereof, though the chain was dark in color, were negligent. A traveler upon the highway is only charged with the duty of using reasonable care to prevent running into other vehicles and objects which are using the road in a reasonable and customary manner, and hence was not bound to discover a chain stretched across the road.90

The defendant contractor, in connection with the construction of a church building, stretched a rope from the top of a gin pole, used in raising heavy material, to a telegraph pole on the opposite, or north side of the street. The plaintiff drove his automobile along the north side of the street, against the rope without seeing it, and his car was demolished; the rope being so low on the north side that it caught the top of the passing automobile. Suit was brought against the contractor and against the city. The plaintiff's evidence showed that the street was down grade where the accident occurred, and that he was traveling at the rate of 10 or 12 miles an hour; that he had previous knowledge that the church was being erected at this place and that the street was being more or less obstructed by lumber and other material; that the rope was an inch and a quarter to an inch and a half in diameter; that he did not see the rope before it caught his machine, although it was a clear, bright day, and there was nothing to prevent his doing so. He said he did not know where he was looking at the time of the accident, and gave it as his opinion that if he had been looking down the street in front of him that he would probably have seen the rope in time to have stopped the machine, which he said he could have done in the distance of the car length.

St.

89 Clamper v. Philadelphia,

66

124 Atl. 132 (1924). Appellant contends further that plaintiff was negligent in failing to equip his car with headlights of sufficient brilliancy to enable him to observe the rope. The Act of June 30, 1919 (P. L. 678; Pa. St. 1920, §§ 9641001) requires that automobiles shall be equipped with lights of sufficient power to clearly illuminate the road at a distance of 200 feet ahead of the vehicle, but also provides that such lamps shall contain reflectors so arranged and the light so diffused or deflected that

"""No dazzling rays of light shall, at a point 75 feet or more ahead of the

lamp, rise more than 42 inches above the surface on which the vehicle stands.'

"It may be doubted whether the lat ter provisions of the act could be complied with and at the same time have light of sufficient intensity to clearly reveal a rope at a distance of from 4 to 6 feet above the roadway. In any event we cannot say, as matter of law, that the rope would be so clearly revealed that the driver of an automobile, in the exercise of proper care, was bound to observe it under the circumstances here involved." Clamper v. Philadelphia, Pa. St. 124 Atl. 132 (1924).

90 McWhorter v. Draughn,
98 So. 597 (1924).

He said that he knew of a city ordinance limiting the rate of speed of automobiles to 8 miles an hour. There was other evidence that plaintiff was traveling 20 to 25 miles an hour; that at and just before the time of the accident he was looking at the church and work being carried on there; and that if he had turned a little nearer the middle of the street he would have passed under the rope without accident. There was a verdict in favor of the defendants, which the court held was justified by the evidence.

The court said that, "It is true that plaintiff is not required to anticipate and keep watch for this or any other particular obstruction in the street, but the jury has a right to infer, as proving contributory negligence, that if plaintiff had used that degree of watchfulness and caution demanded of every one driving an automobile along a much used and more or less obstructed street, that he would have discovered this particular obstruction and avoided this particular injury." The court declared that the act of the contractor in stretching this rope across the street so as to obstruct a small part of it to persons in automobiles and without warning people of the danger, was not necessarily an act of negligence. The court also said, in passing on a motion for rehearing, that it is the duty of a traveler, not only to use care to avoid known and expected obstructions and defects in the street, but also to discover those which are unknown, unexpected, and unlawfully there. The case cited by the court does not fully support this statement, however, and it is thought that it is unfortunately put. The rule is universal and well known that one is not bound to anticipate that another will be negligent. There is a distinction between owing a duty to discover the negligent or unlawful act of another, and the duty to exercise a degree of care that necessarily would have resulted in its discovery.91

§ 1024. Negligent operation of drawbridge. It has been held that the operation of a drawbridge by a city is a governmental function, and that consequently, it is not liable to a motorist for injuries caused by the negligent operation of the bridge by a city employee.1

On the other hand, it has been held, that municipal corporations are liable for injuries resulting from their negligent failure to operate the gates of a drawbridge as required by statute.2

A city is not required to maintain a barrier to a swing bridge that will withstand the impact of an automobile moving at 12 or 15 miles an hour, or which skids against such barrier.3

"The law permits one using a street to presume, in the absence of warning to the contrary, that it is reasonably safe and fit for travel, and this includes stationary bridges; but this presumption may not dispense with the exercise of ordinary prudence in approaching a swinging bridge, known to be such and at times turned for the passage of vessels."

"4