I concur in the recommendation of Justice Woodward for a reversal of this judgment and for a new trial, not, however, upon the ground assigned by him that there is no cause of action, but upon the ground that it was improperly submitted to the jury. A depression in a paved street of ten inches adjoining the iron rail of a street railroad might well be deemed by the jury an unsafe condition. The defendant Karr could not finish his paving job because it had become too late to put on the bituminous covering contemplated. He was not authorized, however, to permit a dangerous trap in a public highway without some warning thereof. The plaintiff might rightfully insist that the jury should be allowed to say whether some light should not have been placed there to have given her warning of the unsafe condition, and also to have shown her its exact condition and location when she was obliged to use this part of the street upon a dark night. It is true that she knew generally of this condition and this location, as she passed by there many times. But one who has passed over a defective walk many times and knows of its condition is not as matter of law guilty of contributory negligence, when upon using it thereafter at night he has fallen and has sustained injuries. One may rightfully use a highway for the purpose of going back and forth at any place, and this plaintiff cannot be said as matter of law to have been guilty of contributory negligence in using this part of the highway as a direct route to the street car which she was seeking to board.
Lyon, J., concurred.
Judgment and order appealed from by the defendant Karr reversed and new trial granted, with costs to appellant to abide event.
*784On the 25th day of November, 1914, a dissenting opinion was filed by Kellogg, J., and the decision was amended so as to read as follows:
Judgment and order appealed from by the defendant Karr reversed on law and facts and new trial, as to the defendant Karr, granted, with costs to the defendant Karr to abide the event. This court disapproves of the finding of fact that the defendant Karr was guilty of negligence.