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Argument for Plaintiff in Error.

But where the defect is so far from the highway that it only can be reached by one straying from the highway, no barrier need be erected. 9 Am. & Eng. Ency. Law (1 ed.), 380; Kelley v. Columbus, 41 Ohio St., 263; Village v. Kallagher, 52 Ohio St., 183.

It is not the duty of the village to provide against every probable accident and injury. Dayton v. Glaser, 76 Ohio St., 471.

The true test is whether there is such a risk of a traveler using the street in the ordinary way, in passing along the street being thrown or falling into the dangerous place, that a railing is requisite to make the place safe. 5 Thompson on Negligence, Sections 6056, 6057, 6058; Puffer v. Orange, 122 Mass., 389, 23 Am. Rep., 368; Murphy v. Gloucester, 105 Mass., 470; Daily v. Worcester, 131 Mass., 452; Barnes v. Chicopee, 138 Mass., 67, 23 Am. Rep., 259; Sykes v. Pawlet, 43 Vt., 446; Hannibal v. Campbell, 86 Fed., Rep., 297; Sparhawk v. Salem, 79 Am. Dec., 700; Bennett v. Railroad Co., 102 U. S. 577.

It will probably be claimed, that since the jury found against the defendants below on the matter: of contributory negligence, that this finding is final and conclusive. But our contention is, that this inference of negligence appears from the well established, admitted or undisputed facts in this case, and that, therefore, it becomes a question of law upon these facts. Railroad Co. v. Skiles, 64 Ohio St., 458; McCarty v. Railroad Co., 11 0. C. D., 229; Railroad Co. v. Crawford, 24 Ohio St, 631; Pennsylvania Co. v. Rathgeb, 32 Ohio St., 66; Village of Leipsic v. Gerdeman, 68 Ohio St.,

Argument for Plaintiff in Error.

1; Railway Co. v. Elliott, 28 Ohio St., 340; Pennsylvania Co. v. Alburn, 13 C. D., 130; Railroad Co. v. Thompson, 19 Ill., 586; Railroad Co. v. Ritchie, 102 Pa. St., 425; Sutton v. Railroad Co., 66 N. Y., 243.

We admit the rule, that the owner of the property is not liable to a person who comes upon his premises without invitation, expressed or implied, and is injured from the unsafe and dangerous condition of the premises.

Here we have a state of things altogether different. Mrs. Gilbow did not intend to commit a trespass, she did not know that she was not in the street; she was lost. While we think she should have known it, yet if the court finds against the plaintiff in error upon that proposition, then she was not knowingly on Holden premises, and the rule does not apply. Morris v. Woodburn, 57 Ohio St., 330.

We are unable to perceive any difference between the case at bar and the above case. Phifer v. Cox, 21 Ohio St., 248; 24 Am. & Eng. Ency. Law, 35.

If a city has been compelled to pay a judgment, recovered by a traveler caused by a defect in the street, and by the negligence of a third person, it may maintain an action against such person for reimbursement. Thompson on Negligence, Section 6359; Brooklyn v. Railroad Co., 47 N. Y., 475; Westfield v. Mayo, 122 Mass., 100; Brookville v. Arthurs, 130 Pa. St., 501; Milford v. Holbrook, 85 Am. Dec., 735; Norwich v. Breed, 30 Conn., 535.

Argument for Defendant in Error.

We contend, that where the property owner constructs a pitfall along the margin of the street or sidewalk, so a traveler thereon might slip and fall into the same, and he fails to protect it by fences or barriers, he is primarily liable, even though the village might also be liable. They stand upon the same footing.

footing. 24 Am. & Eng. Ency. Law, 113; 2 Shearman & Redfield, 362.

Messrs. Healea & Healea and Messrs. Graham & Stafford, for defendant in error, Holden.

The owner of the land is not liable for injuries resulting from the unsafe or dangerous condition of his premises, to persons who go upon them, without invitation express or implied. Kelley v. Columbus, 41 Ohio St., 263; 1 Thompson on Negligence, Sections 945, 946, 1225, 1228; Shearman & Redfield on Negligence (5 ed.), Sections 243, 703; Beck v. Carter, 68 N. Y., 283, 23 Am. Rep., 175; 24 Am. & Eng. Ency. Law, 94; 9 Am. & Eng. Ency. Law, 380, 381, 382, 383; Sparhawk V. Salem, 79 Am. Dec., 702; Schimberg v. Cutler, 74 C. C. A., 33.

No allegation of invitation of any character by Holden to Mrs. Gilbow to go upon his premises appears in either of her petitions; nor has any claim been made of liability by reason of such invitation. Mr. Holden owed her no particular duty to keep the street safe or to erect such barriers as would prevent her from leaving the same, or to furnish lights by which she could safely travel such streets. That was the duty of the village.

Argument for Defendant in Error.

Mrs. Gilbow was guilty of such contributory negligence as under the undisputed facts, as shown by the record, precludes her right of recovery in this action. Schaefler v. Sandusky, 33 Ohio St., 246; Conneaut v. Naef, 54 Ohio St., 529; Dayton v. Glaser', 76 Ohio St., 471; Norwalk v. Tuttle, 73 Ohio St., 246; Dayton V. Taylor, 62 Ohio St., 11.

We contend that the question of the right of a municipality to recover over, or whether it is primarily or secondarily liable or not, is not in any way involved in this controversy; but as counsel argue it and say that Holden was primarily liable and the village secondarily liable, we beg to say that under the facts and circumstances of this case the rule stated is not correct. The case is clearly distinguishable from Morris v. Woodburn, 57 Ohio St., 330. The village, if liable at all in this case, is primarily liable. Wilhelm v. Defiance, 58 Ohio St., 63; Chicago V. Robbins, 2 Black, 418; 4 Wall., 657; 1 Shearman & Redfield (5 ed.), 384.

We contend that knowledge is not an essential element of the act of trespass; that when Mrs. Gilbow left the street and entered upon Holden's premises, without invitation express or implied, whether knowingly or not, she was a trespasser.

Messrs. Richards & McCullough and Mr. J. F. Green, for defendant in error, Mrs. Gilbow.

The argument in support of the village of Mineral City proceeds upon the theory that under the allegations of the amended petition the action as to one of the parties defendant was for an

Argument for Defendant in Error.

omission of duty, while as to the other it charged the creation of a nuisance. This construction is clearly unwarranted by the averments of the amended petition, which alleges only that the defendants were guilty of negligence. We contend that this omission of duty on the part of both defendants was one, single, joint, concurrent tort, and that the plaintiff could have sued either or both of the parties defendant at her option. 15 Ency. Pl. & Pr., 559. And this court is committed to the rule by the decisions in Boyd v. Watt, 27 Ohio St., 268; Vary v. Railroad Co., 42 Ia., 246; Railway Co. v. Croskell, 6 Tex. Civ. App., 160, 25 S. W. Rep., 486; Brown V. Fairhaven, 47 Vt., 386; Peckham v. Burlington, Bravt. (Vt.), 134; Weisenberg v. Winneconne, 56 Wis., 667: Lyman v. Hampshire County, 140 Mass., 311; Walsh v. Bridge, 96 N. Y., 427; Charman v. 'Railway Co., 105 Fed. Rep., 449.

In the absence of any special law as to the liability respectively of a municipality and an abutting owner for injuries due to negligence in the maintenance of the highway, resort must be had to the broad common-law rule that wherever a duty is owed by several, they are jointly liable. Peoria v. Simpson, 110 111., 294.

Plainly the questions were of the negligence of the village and of Holden and the contributory negligence of Mrs. Gilbow, for the jury, under appropriate instructions from the trial court, and their verdict has established conclusively that the condition of the highway was defective, that the plaintiff exercised due care, and that the defect

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