The defendant is to be held liable upon the principle that where an owner makes an excavation on his land so near the highway as to render travel thereon dangerous and fails to guard it, he is chargeable with negligence, notwithstanding that no such condition is alleged in the complaint or proved upon the trial. Nor did the plaintiff, according to her own story, fall into any excavation, nor was she injured as the result of any dangerous structure1 or condition created or maintained by the defendant. The complaint alleges, and the evidence is undisputed, that the level of the defendant’s land was lower than the surface of the street, the street having apparently been filled up to conform, to its grade, and that the slope down to the level of the defendant’s land commenced upon the sidewalk so that the depression is in the street, and not in consequence of any condition of the defendant’s property or of any use to which it had been put. The complaint expressly alleges that the plaintiff fell into “ the hole, space, opening or gully on the sidevyalk ” — not upon the defendant’s property. Nor was the plaintiff injured by falling into such a depression, either upon the street or upon the defendant’s property. Her testimony is that, seeing a child upon some timber placed upon the defendant’s property, she said to the child, “ Come, I shall take you to1 your mama,” and stepped for*357ward so that the child could come to her; her foot slipped in a red clay that was around that beam, and she fell right down until her head was almost on a level with the sidewalk. It is not claimed that these beams were on the street. The undisputed testimony is that they had been placed upon the defendant’s property by her husband, being used by him in his business as house mover. The plaintiff must, therefore, have walked from the street down the slope to the defendant’s lot, and when she got by the beam stepped upon some red clay that was on defendant’s property. Upon what principle this can be said to impose upon the defendant liability for the accident I am unable to understand. There was no excavation caused or maintained by the defendant. There was no obligation upon her to fence her property so that persons could not walk upon it from the street and slip when there. I assume that the plaintiff was not a trespasser, but assuming that she was rightfully on the property, she was there by no invitation or consent of the defendant, nor in the discharge of any duty. She voluntarily placed herself in this position, possibly for a laudable purpose, but when she was upon the defendant’s property the defendant owed her no duty to protect her from slipping, and is not liable for an injury sustained because some red clay had washed down against the timber that was there and plaintiff slipped upon it. With the law, as stated in the prevailing opinion, there is no objection, but it is based upon an assumed state of facts, neither alleged nor proved in this ease. Nor could it be said that, if the pile of timber placed upon the defendant’s premises was of a dangerous character, the defendant was responsible for it. She had nothing to do with placing the timber there, and if this timber caused the injury, the defendant’s husband, who placed it there and who nsed it for his own purposes, was the person responsible. It seems to me that the facts as alleged and proved are entirely insufficient to charge the defendant with negligence, and I, therefore, think the judgment should be affirmed.
Laughlin, J., concurred.
Judgment and order reversed and new trial ordered, costs to appellant to abide event.