Carty v. Boeseke-Dawe Co.

ALLEN, J.

Action on account of alleged negligence. Verdict and judgment for plaintiff. Defendant appeals. •

The record discloses that De La Vina street is a public street running northerly and southerly through the city of Santa Barbara; that defendant

under

authority from the municipality entered upon such street, near its intersection with Ortega street, and made an excavation in the center line of De La Vina street a distance of eight feet, which excavation had a width of two feet and a uniform depth of six feet, the same having been made for the purpose of locating a sewer connection. Prom this sewer connection when located, which appears to have been near the middle of the excavation, a ditch was dug easterly at an angle of about forty-five degrees from the line of the first excavation to the curb line of the street, with a depth varying from six feet at the street center to three feet at the curb. Prom these excavations dirt was thrown upon the banks upon either side, elevating the surfaces adjacent nearly three feet. On the evening of October 22, 1903, the workmen in defendant’s employ ceased labor for the day; and evidence appears tending to show that there was placed on the westerly side of the center line excavation, near its middle, a lighted lantern, fastened upon a stick stuck in the loose earth on the westerly side of the embankment, which stick slanted away from the ditch. This lantern was lighted and the light maintained all night. No other light or danger signal was placed on or about the excavation, except a lighted lantern placed near the curb at the easterly end of the ditch. This lantern is shown to have been extinguished within a short time after being placed in position, and was not maintained as a danger signal during the night. Plaintiff, before daybreak on October 23d, seated in a buggy drawn by a single horse, drove down De La Vina street northerly without seeing the lighted lantern, or having knowledge of the excavation, and his horse fell into the center line excavation from the east side, near its junction with the ditch and about six feet east of the lighted lantern. The horse received injuries from which it died, and plaintiff suffered serious injury.

[648]

It is contended by appellant, under this state of facts, that nó negligence on the part of defendant is shown. With this contention we cannot agree. To our mind, the defendant was shown to have been exceedingly careless in the manner of placing the precautionary signals; in fact, the only signal maintained was so placed west of the center line of the excavation and in a position which, if seen by a traveler upon the street, would probably indicate to him that the safe route of travel was east of the center line of the street. The duty of defendant under the circumstances of this case is defined by the trial court in one of its charges: “It is the legal duty of one who maintains an excavation in a public street to use such care as an ordinary prudent and careful person would use under like circumstances in maintaining in or around said excavation such guard or barrier or light or lights as will warn one who is lawfully using said street in the night-time of the existence, location and limits of such excavation.” It is insisted by appellant that this charge is misleading under the peculiar facts of this ease. We do not so consider it. The excavation was continuous, although made for different purposes. The effect was to render travel on the east side of the street dangerous. Notice of this fact should have been maintained by defendant. The omission in that regard was negligence. That plaintiff did not see the signal light is no proof of the fact that he would not have observed a number of lights placed along the line of the ditch. The proximate cause of the injury was the absence of these signal lights properly placed so as to mark'the line of the excavation. If a light had been maintained at the curb, it would have tended to indicate the limits of the excavation, and would have served as a partial warning that the whole east side of the street was impassable. It was therefore connected with the transaction and important, although its situation was remote from the scene of the accident. No contributory negligence is shown. There was testimony tending to show that the single, improperly placed light was dim, and no other light maintained. The excavation was a recent one, unknown to plaintiff, and he had a right to proceed upon a public street in the usual way, relying upon proper safeguards and notices if dangerous obstructions had.been created in the street. As we have before said, had he seen the single light and driven to.