The plaintiff’s testator was injured by a fall in the street. He was seen' to fall, and was picked up senseless at a point where some rails projected beyond a temporary barrier enclosing a place where the defendant was having a track laid. There was no evidence of any other possible cause of the fall. This warranted a finding that he tripped over the end of the rails.
The street was a public highway, and the jury very properly might find that it was negligent to allow the ends of the rails to project beyond the barrier, especially if they believed that it was dark at the place, as one witness testified, although the weight of the testimony looks the other way on paper.
There was testimony that the plaintiff’s testator was walking in the usual way just before he fell. Taking into account what he had a right to assume with regard to that part of the street which was not enclosed by barriers, the jury was warranted in finding that he was using due care. Learoyd v. Godfrey, 138 Mass. 315, 324. Lyman v. Hampshire, 140 Mass. 311, 314. Indeed, if they believed that it was dark, they might have considered that the testator had been led into a trap. It is suggested that he was not crossing at a regular crossing. But his rights were not changed by a slight change in the pavement. He had a right to cross where he chose, if the jury thought that he used due care. Raymond v. Lowell, 6 Cush. 524. Gerald v. Boston, 108 Mass. 580.
It is argued that the work was done by an independent contractor. Assuming that there was evidence warranting that conclusion, we are of opinion that the fact would not exonerate the defendant. In some cases a party is liable notwithstanding the intervention of an independent contractor lawfully employed. A plain case is when he is made personally responsible by statute-for the prevention of the cause of the damage complained of. Gray v. Pullen, 5 B. & S. 970. Thus it is settled in many States that a city charged with the duty of keeping the streets in repair is answerable for an improperly guarded excavation *340made by a contractor; for instance, in building a sewer. Storrs v. Utica, 17 N. Y. 104. Detroit v. Corey, 9 Mich. 165. Birmingham v. McCary, 84 Ala. 469. Logansport v. Dick, 70 Ind. 65. Houston & Great Northern Railroad v. Meador, 50 Texas, 77. Circleville v. Neuding, 41 Ohio St. 465, 469. Baltimore v. O'Donnell, 53 Md. 110. Robbins v. Chicago, 4 Wall. 657, 679. Water Co. v. Ware, 16 Wall. 566. In the present case it would not stretch the words of the Public Statutes and of the defendant’s charter very much to say that such a personal duty was imposed upon it. Pub. Sts. c. 113, § 32. St. 1853, c. 353, § 3. See Quested v. Newburyport & Amesbury Horse Railroad, 127 Mass. 204; Osgood v. Lynn & Boston Railroad, 130 Mass. 492; Brookhouse v. Union Railway, 132 Mass. 178; Braslin v. Somerville Horse Railroad, 145 Mass. 64.
But further, apart from statute, if the performance of a lawful contract necessarily will bring wrongful consequences to pass unless guarded against, and if, as in the present case, the contract cannot be performed except under the right of the employer, who retains the right of access to the premises, the law may require the employer' at his peril to see that due care is used to prevent harm, whatever the nature of his contract with those whom he employs. Sturges v. Cambridge Theological Education Society, 130 Mass. 414. Stewart v. Putnam, 127 Mass. 403, 407. Gorham v. Gross, 125 Mass. 232, 240. Bower v. Peate, 1 Q. B. D. 321, approved in Dalton v. Angus, 6 App. Cas. 740, 4 Q. B. D. 162, and 3 Q. B. D. 85. Pickard v. Smith, 10 C. B. (N. S.) 470. Hole v. Sittingbourne & Sheerness Railway, 6 H. & N. 488, 500. Circleville v. Neuding, 41 Ohio St. 465.
Laying the track for the defendant necessitated the digging up of the highway, and the obstruction of it with earth and materials. This obstruction would be a nuisance unless properly guarded against. The work was done under a permit issued to the defendant. Considering the general principle of the law, and also the special relations of horse railroads to the highway and the policy of the statutes, so far as the Legislature has expressed itself upon the subject, we are of opinion that the defendant, having caused the highway to be obstructed, was bound at its peril to see that a nuisance was not created. Veazie v. Penobscot Railroad, 49 Maine, 119, 123. See also Darmstaetter v. Moynahan, 27 Mich. 188.
*341Exactly how far this principle shall be carried is a question of nicety. But on the whole we are of opinion that the present case falls within it, and does not resemble those where the cause of injury was an application of force to the person or property of the plaintiff by a transitory act or by a defect in machinery.
Exceptions overruled.