Argument for Defendant in Error. was the proximate cause of the injury. 15 Am. & Eng. Ency. Law (2 ed.), 456, 464, 467. These questions were reviewable by the circuit court, and it has held that the verdict is not against the manifest weight of the evidence. This court will not review the evidence. Finley v. Whitley, 46 Ohio St., 524. The true rule is that an abutting owner (and the municipality as well) is liable for injuries due to negligence in failing to guard a pitfall upon his premises, when the pitfall is so near the street line that pedestrians are liable to fall therein while properly and lawfully using the street. Early v. Railway Co., 66 Mich., 351; Kelley v. Columbus, 41 Ohio St., 263. The authorities disclose that no rule of law has established the distance from the sidewalk that a passerby in the eccentricities of travel may step, and yet be within the protection of the rule making an abutter liable for injuries resulting therefrom. Numerous cases hold with our own, (Kelley v. Columbus, supra), that where the excavation is twenty feet or more from the highway the owner is under no obligation to fence his property. Binks v. Railway Co., 3 B. & S., 244, 113 E. C. L., 242; Hudson v. Marlborough, 154 Mass., 218, 28 N. E. Rep., 147; Daily v. Worcester, 131 Mass., 543; Puffer v. Orange, 122 Mass., 389, 23 Am. Rep., 368; McHugh v. St. Paul, 67 Minn., 441, 70 N. W. Rep., 5; Schmidt v. Distilling Co., 90 Mo., 284, 59 Am. Rep., 16; Vanderbeck v. Hendry, 34 N. J. L., 471; Murphy v. Brooklyn, 118 N. Y., 575, 23 N. E. Rep., 887; Gillespie v. McGowan, 100 Pa. St., 144, 45 Am. Opinion of the Court. Rep., 365; Gorr v. Mittlestaedt, 96 Wis., 296; Hadley v. Taylor, L. R., 1 C. P., 53; Early v. Railroad Co., 66 Mich., 349; Malloy v. Savings & Loan Society, 21 Pac. Rep., 525; Beck v. Carter, 68 N. Y., 283; Crogan v. Schiele, 53 Conn., 186, 1 Atl. Rep., 899, 55 Am. Rep., 88; 15 Am. & Eng. Ency. Law (2 ed.), 456. DAVIS, J. There was a misjoinder in this action. In the amended petition the complaint against the lot-owner is that he maintained upon his premises a dangerous pit, which encroached upon the sidewalk; and that he wrongfully and negligently failed to guard the same by barrier, light or other precaution. This is not complained of the village and manifestly does not affect or concern it. The charge against the village is that it knowingly permitted the sidewalk to be in a dangerous condition, without any barrier between it and the pit or retaining wall on the abutting premises. This is an entirely different cause of action from that alleged against the abutting owner; and, if both were sustained by the evidence, they would at best be only concurrent and not joint acts. Morris v. Woodburn, 57 Ohio St., 330. The plaintiff below relied chiefly on City of Peoria v. Simpson, 110 Ill., 294. The averments in that case present a condition of facts widely differing from this case; and the court expressed doubt as to the result reached. But the court stated the law very correctly and concisely, as follows: "Undoubtedly the rule is for separate acts of trespass separately done, or for positive acts negligently done, although a Opinion of the Court. single injury is inflicted, the parties cannot be jointly held liable to the party injured. If there is no concert of action-no common intentthere is no joint liability. This rule is very well settled by authority. Hilliard on Torts, Sec. 10, p. 315; Little Schuylkill Nav., Railroad & Coal Co. v. Richards' Admr. 57 Pa. St.. 142: Shear. & Redf. Neg., 58; Bard v. Yohn, 26 Pa. St., 482. But a different principle applies where the injury is the result of a neglect to perform a common duty resting on two or more persons, although there may be no concert of action between them. In such cases the party injured may have his election to sue all the parties owing the common duty, or each separately, treating the liability as joint or separate." In the case which is now in hand, the overruling of the demurrer for misjoinder made it necessary for the defendants to make separate answers and to make separate defenses on the trial, which nevertheless resulted in a joint verdict and a joint judgment against the defendants, although not a scintilla of evidence appears in the record to show that the sidewalk itself was in any way dangerous or defective so as to have contributed to the plaintiff's injury, or that the "pit" or wall over which the plaintiff fell was so near to the sidewalk as to make the ordinary and proper use of the sidewalk dangerous; and, although not a scintilla of evidence appears that the lot-owner "encroached" upon the sidewalk or even approached it within six feet of his own property line. Nor does it appear that the lotowner maintained a nuisance as alleged, but rather Opinion of the Court. that the condition of things which existed there was forced upon him by the construction of a railroad and the acts of the village, whereby the street in front of his lot was raised several feet and he built the retaining wall six feet within his property line to protect his own property. At a distance of one foot and a half within the property line was a row of fence posts on which at a former period wires had been strung. This situation had existed since about the year 1883; and it must be apparent, therefore, that the precipice, five or six feet high, caused by the retaining wall, was not so near to the sidewalk as to make the ordinary use of the street or walk at all dangerous. The demurrer for misjoinder of parties should have been sustained. The circuit court reversed the judgment against the abutting lot-owner, Holden, for several reasons, one of them being that the judgment was "contrary to all the evidence as to the said Charles E. Holden." Under the ruling in Wetzell v. Richcreek, 53 Ohio St., 62, which states the settled practice of this court, this judgment of the circuit court is not reviewable; but inasmuch as the contentions of the plaintiff in error have necessitated an examination of the whole record, it is not improper to say that we have discovered nothing which would make it clear that the circuit court erred in its judgment as to Holden. In the further consideration of this case it will be necessary to go back and bring into view a few other undisputed facts, which have not yet been mentioned. Along the east side or front of the Holden lot runs High street and the sidewalk Opinion of the Court. already spoken of. Between the street and the sidewalk is a retaining wall, varying in height from six to twenty-four inches. The sidewalk is of plank and five feet wide. Between the sidewalk and the retaining wall over which the plaintiff fell, for a distance of about six feet, is a grass plot or sod. The lot below is, and always has been, used as a flower garden. A railway track crosses High street diagonally in front of part of this lot and from near the point where the railway track crosses the east sidewalk on High street, a brick crossing, more than five feet wide, extends diagonally across High street, where it intersects the west sidewalk on High street and the sidewalk on Center street at the northeast corner of the lot in question. Center street extends along the north side of the lot. The plaintiff had lived in the village, and only two squares away from the place where she was hurt, for twenty-three years; and she had never lived farther away than one-half mile from the village. She declares that she did not know of the conditions as we have described them; yet she knew them well enough and had sufficient confidence in the accuracy of her knowledge, to leave her home alone, between six and seven o'clock on the evening of the 8th of February, to visit a friend living on Center street. It was a dark evening, and unaided by any other light than that shining from the windows of dwelling-houses along the way and a few business places on High street, she made her way along the street on which she lived to High street and along the east side of High street to the brick crossing near the |