(dissenting):
The referee finds that the defendants made the excavations and caused the obstructions, alleged to have occasioned the injury.
Their liability then did not arise simply from their duty as a municipal corporation to take care of the streets. It arose from their own act. Just as a private person might be liable for making an excavation and not guarding it properly.
This distinction is pointed out in Griffin v. Mayor (9 N. Y., *536456, at 461), where it is said that a municipal corporation, in the nse and occupation of its property, is held to the skill and care which would be required of an individual. (See, also, Mayor v. Furze, 3 Hill, 612.)
Now, on the contrary, in the case of Doherty v. Waltham (4 Gray, 596), relied on by the defendants, there is nothing to show that the well had been opened by the defendants. The same is true of the cases of State v. Bangor (30 Maine, 341), and of McGinity v. Mayor (5 Duer, 674). In none of these does it appear that the obstruction or defect, which caused the injury, was created by the defendants.
The question then is, what is the duty of a person who makes an excavatiSn, or places an obstruction, in a public highway, such as he may lawfully make or place, for temporary purposes of building and the like ? “ The performance of the work necessarily renders the street unsafe for night travel. * * * The danger arises from the nature of the improvement, and if it can be averted only by special precautions, such as placing guards or lighting the street, the corporation which has authorized the work is plainly bound to take these precautions.” (Storrs v. Utica, 17 N. Y., 104; Davenport v. Ruckman, 37 id., 568 ; Grant v. Brooklyn, 41 Barb., 381; Creed v. Hartmann, 29 N. Y., 591.)
But the defendants insist that having put up a barricade, they were not bound to see that it was maintained. Persons, however, travel at late, as well as at early hours. And the obligation of the defendants to warn travelers of the obstruction, which they have created themselves, continues at all times. In the case of Johnson v. Friel (50 N. Y., 679), the defendant, a contractor, had dug a ditch for the purpose of making a sewer. He filled the trench and repaved it. Afterwards the rain washed out a hole where the earth had been filled, and the plaintiff’s horses were injured there. It was held that it was not enough that the defendant left the work in a proper and safe condition at the time. It was his duty to provide for, and anticipate, the natural effect of the rain; to see that during and after the rain it was in proper and safe condition, or that safeguards were placed or watchmen kept, or such measure of prudent forethought adopted to prevent damages to the trmeli/ng public.
If, then, a person making an excavation is bound to anticipate *537that, two weeks afterwards, rain may settle the new earth, and to guard against that by safeguards or watchmen, is he not bound to see that a barricade put up in the, evening is so securely fastened that no ordinary force will remove it before morning ?
It seems to me that the obligation to protect the traveling public against the damages arising from such an obstruction or excavation is one which exists at all times, because the public are at all times entitled to use the road. Hence the person who has made the obstruction must maintain safeguards. Either he is bound to maintain them at his peril, or, at least, if he may leave them unprotected and exposed to the possibilities of removal during the night, he must erect them of such strength that no prudent and reasonable man would anticipate any danger that they would be taken away.
The case is not unlike that of an owner of premises who allows dangerous places to exist on them and who fails to notify persons coming thereon by invitation, express or implied. (Coombs v. New Bed. Cord. Comp., 102 Mass., 592; Indermaur v. Dames, L. Rep., 2 C. P., 311.)
The question is, was the plaintiff actually warned by the defendants of the danger which they had caused ? If not, then had they taken such measures for the purpose of giving the public warning, that their failure to notify the plaintiff of his danger could not have been reasonably anticipated ?
The referee, as I understand, has substantially found against the defendants in this particular and I think his finding is not erroneous.
Judgment reversed and new trial granted; referee discharged; costs to abide event.