The plaintiff’s due care is conceded. Upon all the evidence the negligence of the defendant was also a question for the jury. Primarily it was under no obligation to guard this trench in the street. Leary v. Boston Elevated Railway, 180 Mass. 203. But if the railway company entered into an arrangement with the city, or with the contractor who was responsible to the city, to guard the trench, the duty of protecting travellers from the danger of an unguarded trench became the defendant’s business. Phinney v. Boston Elevated Railway, 201 Mass. 286.
The trench extended from the side of the street to about two feet under the nearest car track. The earth taken from the excavation was heaped along both sides of the trench, and extended from the building through the sidewalk and street to within two or three feet of the- nearest rail. The space between the end of these piles of dirt and the end of the trench within the rails could not be guarded by barriers without preventing the passage of the electric cars. Consequently the defendant’s interest suggested the adoption of some method whereby the opening in the public street should be made safe for travellers without compelling it to remove and replace barriers every time that one of its cars passed. It was in evidence that the watchman whose duty it was to guard the trench had been sent there by the defendant in consequence of a conversation held between the contractor and some person representing the defendant company. And it farther appeared that the railway company also provided, for use in guarding the trench, two wooden horses, two red lanterns and some planks. Upon all the evidence it was a question of fact for the jury whether the defendant had agreed to relieve the city and contractor from guarding the excavation at the place of the accident and had assumed the duty of protecting travellers from the danger. Boucher v. New York, New Haven, & Hartford Railroad, 196 Mass. 355, 358.
There was evidence of negligence on the part of the watchman. He saw the plaintiff approaching the unguarded excavation, but was away from his post and his lantern was extinguished.
Exceptions sustained.