After the evidence was in, the defendants requested the court to rule that there was no evidence which would justify the jury in finding a verdict for the plaintiff. He declined to do this, and the defendants excepted. It was necessary for the plaintiff to prove, not only that he used ordinary care, but that the defendants were negligent. As to his own care, it was not necessary to prove it by directly affirmative evidence, but the inference of such care might be drawn from the absence of all appearance of fault, either positive or negative, on his part, in the circumstances under which the injury was received. Mayo v. Boston & Maine Railroad, 104 Mass. 137.
He gave in his testimony a clear narrative of his progress from the sidewalk to the street and the track behind the car, and de*48scribed its starting slowly and then stopping, and his following it till it stopped again, and putting his hand upon the handle of the rail, when it started again and he fell into the hole. Others described the locality, including the purpose for which the hole was dug, the embankments of earth, the guards and lights placed there to protect passengers; and as it was after nine in the evening, and a dark night, it was a matter of inference how far passengers could see the danger to which they were exposed. There was evidence sufficient to authorize the jury to find that the plaintiff used due care, and a majority of the court think it was properly submitted to them.
The city had a right to make the excavation ; but when they left the place at night, they were bound to erect barriers to make it reasonably safe and convenient for travellers. If they were removed by strangers, at night, without the knowledge of the city authorities, the city would not be liable. Doherty v. Waltham, 4 Gray, 596. But they were not thus removed. The city authorities had knowledge that the cars were running by their permission, and they knew that this would make it necessary to remove the barriers as often as a car passed. Their authority over the streets was not abridged by the existence of the railway; and if they were made liable to travellers by reason of any negligence of the railway, they had a remedy over. Sts. 1864, c. 229; 1866, c. 286; 1871, c. 381. They were liable, therefore, for the negligence of the railroad company. Currier v. Lowell, 16 Pick. 170. The existence of the railroad, or its negligence, did not relieve the city from its liability for defects in the highway, hi or was the remark of the justice, “ that whether the barrier was thrown across the track when the cars were not passing was not of much consequence, as it was removable and intended to be removed,” prejudicial to any rights of the defendants, for it was obviously correct. Under proper instructions, the jury have found that the defendants were guilty of negligence, and the plaintiff need due care. Judgment for the plaintiff on the verdict,