On Petition for Rehearing.
Per Curiam.The ground of liability is that the city permitted the defectively supported’ awning to remain over the sidewalk so that it was likely to fall and injure pedestrians, upon any considerable lateral force- being applied to the defective support in the use to which the walk and the awning support were ordinarily, or customarily put, of which use the city is held to know; and the *134precipitation of the awning upon the plaintiff while walking on the sidewalk caused by the jerk of the horse hitched to the insecure support of the awning without fault of the plaintiff gave rise to the liability of the city, when it was shown to be customary to hitch horses to the supports of awnings on that street, particularly when it appears that the support had been in the unsafe condition for some time and that the same support had some time before been jerked from its proper place by a horse hitched thereto and that thereafter such support remained in the unsafe condition, which was apparent to any one who might examine it for some weeks and until this injury occurred.
The duty of the city involved the maintenance of the sidewalk in a reasonably safe condition for a “viatic use of the way.” This-included the reasonably safe condition of the awning overhead as well as of the walk itself.
The declaration does not allege that it was customary to hitch horses to awning supports on that street, but no ground of the demurrer specifically goes to this defect and the statute provides that “no judgment shall be set aside or reversed, or new trial granted * for error as to any matter of pleading or procedure, unless in the opinion of the court * after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice.”
One witness, without objection, testified: “They had just torn away the old sidewalk, just before then, I don’t know just how long, but just a little while before then, and laid a new one, and these posts were just sitting on the new sidewalk, one at each comer of this awning. They weren’t fastened into the walk at all, and this awning where it butted against the house wasn’t bolted to the house, it was simply nailed up there with some spikes *135to a brick wall, and when this piece was pulled out, it pulled it all right loose from the building, and it fell down and caught us both under it. There was one post at each corner. I went by there the next morning to see how many there was and there was two. And when one post came out, the whole thing came down. There were no supports or fastenings other than the two posts to hold it up — that was all that could have been holding it. The awning needed repair. It wasn’t in shape to be there at all — I couldn’t say how long it had been that way. It had been that way for several weeks that I know of. I suppose the new sidewalk had been there for five or six weeks, may be longer than that. The posts were not morticed into the sidewalk — they were just setting on the sidewalk. There were only two posts.” “In my judgment, this awning was- not securely fastened to the building. It should have been tied, bolted, as we call it, to the wall. If those tie bolts had been there the shed would not have fallen when the post was pulled out. You could have pulled both of them out and i.t wouldn’t have fallen.” “It is customary where sheds are supported by posts to mortice or fasten them into the sidewalk. Those posts were not morticed or fastened.”
Another witness without objection testified: “I had noticed the condition of this awning before the accident. We had had a little trouble with horses pulling it out once before. It was not fastened to the walk at all. After that any heavy pressure against the post would shove it out. When the horse pulled it out before, the shed didn’t fall. He didn’t pull it plumb out. The horse was hitched to it, and when he backed he pulled it to the sidewalk. He didn’t take it clear out. Hitching horses to posts on that street was a pretty common practice. I had noticed *136the condition of the shed before the accident on account of being by there — it was right near us. I shouldn't say its condition was very good, not safe, when it would move that way. I couldn’t say how long it had been in that condition, but for a pretty good while. I should say a month or two. It was on a street that the city officers passed from time to time. I don’t know that its condition was ever called to the attention of any city officer. I never spoke to any city official .about it myself. They never made any examination of it that I know of. It would have been apparent to them had they examined it. It was plain. You could see it in passing by.” “It was some time before the accident that’ Mr. Carpenter called my .attention to the condition of this, awning or shed being dangerous. I was speaking about the whole of that street. I couldn’t say how long before. It was some time before and after the shed was tripped the first time. Its condition was plainly'apparent to passers by. The posts were not fastened in the sidewalk.”
It is obvious from this and other testimony that the awning support had been unsafe for some time and that its unsafe condition was such that the city reasonably should have known of it. Evidence that “hitching horses to posts on that street was a pretty common practice” was not objected to or controverted. If it was common practice it should have been known to the city as a customary use of the awning post supports, and this condition had immediate relation to the continued and obvious unsafe condition of the particular awning post support on that street which had been pulled out of place on a previous occasion by a horse hitched thereto.
If the defendant was taken by surprise in the introduction of evidence not within the allegations of the declara*137tion and it had been adduced over appropriate objections, the defendant might have been able to show injury in being misled and jeopardized because not prepared to meet the evidence.
If the allegation as- to the customary use of the awning supports in hitching- horses thereto would have shown a cause of action, an'error in omitting such an allegation is under the statute not reversible error when the evidence, without objection being made thereto, proves the custom and proves the long continued unsafe condition of the awning support under circumstances that the city reasonably should have known of the customary use of the supports by hitching horses thereto and should reasonably have known of the patently unsafe condition of the supports, which had no fastenings at the bottom, but merely rested on the surface of the sidewalk next to the street.
It being the duty of the city to exercise reasoanble care in having the awning support kept in a safe condition for the support of the awning, which in this case involved its safe condition for the common practice of hitching horses thereto, and the evidence showing a failure to perform the duty, it was not error to refuse an abstract instruction that “there is no duty resting on a'.city to see that such sheds and awnings are sufficiently strong or seeure to resist the force to which they might be subjected by a horse hitched to one of the posts sustaining the same in an effort to break from his fastening.” Every one, including city officials, must know that horses. sometimes become frightened and try to break away- from-their fastening; and it being common practice to hitch horses to awning posts on. that street^ which is an-element of. the. defendant’s liability, the circumstances of the jerking by the *138horse in this case are not shown to have been other than those that should ordinarily be anticipated under conditions not shown to be at all unusual.
The city should have known of the customary use of awning posts on that street for hitching horses thereto, and the method of preventing a continuance of the custom, whether by ordinance or otherwise, does not affect the liability that may grow out of permitting the practice.
Rehearing denied.