Under the defendant’s motion for a new trial, iwo questions are presented for our determination.
Eirst, it is claimed that the judge should have charged the jury that, in order to justify a verdict for the plaintiffs, they must find not only that the excavation on the defendant’s hind was left by him in a condition dangerous to passengers on the adjoining street who were exercising ordinary care, but also that the excavation was substantially adjoining the highway, so that a person actually upon the highway might be precipitated into it.
In regard to this objection we may remark, in the first place, that the charge which the defendant in fact requested (he court to give, was that if the excavation was wholly on the defendant’s land, at any distance from the line of the street, the plaintiffs could not recover. The difference between the charge requested and the principle contended for is manifest, but we do not care to dwell upon it, because we think that in making the defendant’s liability to depend upon the dangerous condition in which the excavation was left by the defendant, rather than upon its distance from the street, the judge adopted the true criterion.
Our statute (Rev. Sffit,, tit. 24, sec. 7,) made it the duty of the city +5 erect and maintain a good and sufficient fence or railin, on the side of the street, if it was “ so raised above *544the adjoining ground as to endanger the safety of travelers ; ” and made it liable to the payment of just damages to any one who should suffer in person or property by reason of the want of such railing. In a contest between the party injured and the city therefore, it would seem impossible to maintain the principle now contended for by the defendant. By the terms of the statute the duty of the city, and its consequent liability for neglect, are made to depend entirely upon the question of danger; and it is obvious that that question can seldom if ever be resolved by the consideration of the distance between the street and the excavation alone. Distance is one and but one of the elements which enter into the calculation.1 Travelers in the night time need, and the intention of the A, Mature was to give them, the protection of a railing ayunsL actual, existing danger, whether arising from a pit myeral feet distant from the line of way, or a few inches oniy, In both cases the danger, if not equal in degree, .will be almost always equally apparent. And whether danger exists hi the particular case or not must be a question of fact, depending upon all of the surrounding circumstances, and one which the jury only can decide.
And as the dangerous character rather than the exact location of the excavation determined the duty and consequent liability of the city in regard to it, so the duties and liabilities of “the defendant in this respect must be determined by the same criterion. His right to make the excavation-was undeniable, and was not denied ; but he was bound to exercis- [hat right with a due regard to the co-existing rights of th 1 city and of travelers on the street. Sic utere tuo ut alienm-> .-«'.a ladas, is a maxim as universal in application, as it is wisp- ami just in principle.
The defendant had a right to make the excavation, arid, if the fence was his, he had a right to remove that also; but having removed the fence and made the excavation, he had no right to leave the pit unguarded, until time and opportunity had been afforded for the city to assume and perform the duty thus originated and cast upon it by-the defejidant’s aeq Travelers on the street were at all times entitled to, and had *545a right to expect, because the law required it, adequate protection against an excavation by reason of which the street became raised above the adjoining ground so as to endanger the travel upon it. The defendant’s liability did not arise from the act of. making the excavation, for that he had a right to make. Nor could it depend entirely upon the distance between the excavation and the street, for he had an abstract right to make it any where within the limits of his close; but a due regard for the safety of travelers on the street required that, until the city could furnish such protection as the defendant’s acts thus rendered necessary, he should himself discharge that duty. But he neglected it. He left the excavation altogether unguarded and unadvertised, in a condition dangerous to passengers on the adjoining street, and hence his just responsibility for the consequences of that neglect.
Whether the excavation could, with a due regard to the rights of passengers on the street, be left unguarded, or could not, depended upon the question whether, being unguarded, it endangered the travel or not. If it did not, no matter how near it was to the line of way. If it did, no matter how far it was removed.
We think the question of the defendant’s liability in this respect was placed upon the true ground by the judge’s charge.
In the discussion of this question it is to be taken as conceded, that, before the excavation in question, the street at that place was not so raised above the adjoining ground as to endanger the passage of travelers, or, if it was, that travelers were adequately protected by the board fence which until that time stood upon the line between the street and the defendant’s land, so that up to that time the city had been in no default in regard to a fence or railing there. Then the defendant removed the fence, and made the excavation, and left it quite unguarded from the moment it was made. And the night after it was so made and left, the accident occurred. And thus the defendant’s negligence was the immediate cause of the accident and injury for which the plaintiffs were compelled to make compensation.
*546The case of Birge v. Gardner, 19 Conn., 511, was analogous to the case now before us. In that case the defendant erected a heavy gate on his own land, adjoining a lane through which the plaintiff and other children were accustomed to pass from their residence to the highway. The plaintiff, a child of six or seven years of age, playing in the lane near the gate, put his hands on the gate and shook it, whereupon it fell and injured him. The plaintiff in his declaration charged the defendant with negligence in leaving his gate inadequately fastened up, and he recovered; the only question made in this court being, whether the plaintiff himself was chargeable with such misconduct in shaking the gate as precluded his recoveiy; the culpable negligence of the defendant, and his consequent liability unless relieved from it by the co-operating misconduct of the plaintiff, being conceded or not denied.
In the case of The Inhabitants of Lowell v. Boston & Lowell R. R. Co., 23 Pick., 24, a railroad company, authorized by its charter, made a deep cut across a highway, and erected barriers to prevent passengers on the way from falling into it; but having occasion to use the way they removed the barriers, and left them off while their work was suspended for the night. Two passengers fell into the cut, and for their injuries thus occasioned they sued, and recovered compensation from the town. Then the town brought this action for indemnity, and the court hefd it entitled to recover, although it was conceded that the defendants had a right to make the cut, and were not bound to erect the barriers, provided they gave reasonable notice of their intended operations to the officers of the town, and that they had also a right to remove the barriers, (though they had been approved and adopted by the town,) but that they were bound to replace them when their work was suspended for the night. “ This,” says Mr. Justice Wilde, “ was imperatively required by a due regard to public safety, otherwise an accident might happen before the town had notice, actual or constructive, and no one would be responsible for the damages. * * Corporations as well as individuals are bound so to exercise their rights as not to injure others. The *547principle sic utere tuo ut alienum non Icedas, is of universal application.”
The cases cited by the defendant’s counsel are clearly distinguishable from the one before us. That of Howland v. Vincent, 10 Met., 871, was determined upon the ground that no actionable negligence could be imputed to the defendant. He had excavated his land up to within about six inches of the line of the street, and it had remained in that condition for several days before the accident, with the knowledge of the chairman of the board of selectmen and of the town surveyor of highways, the latter having charge of the highways, and having been in fact employed by the defendant to replace the flagging on the sidewalk and put the premises in order. Hubbard, J., in giving the opinion of the court, said, that the only question was, whether the defendant had been guilty of such negligence as to expose him to the plaintiff’s demand; that there was no law which required him to fence the premises in the situation in which they then were, and that he did not appear to have been guilty of negligence. Whether the town would or would not be liable the court in terms declined to express any opinion.
Now if we are right in supposing that, by the statutes of Massachusetts or otherwise, it was the duty of the town to keep the highway in such condition that it might be used by passengers at all times with comfort and security, it would seem to follow that in suffering such an excavation, within six inches of the line of the street, in a populous town, to remain unguarded for several days, the proper officers of the town having knowledge of its existence and condition, the town was guilty of neglect. Indeed, such an unguarded excavation would seem to be a public nuisance to the way, which it was the duty of the town authorities to abate. Angelí on Highways, § 225. And in either aspect the plaintiff, being (as it was agreed) guilty of no negligence, would seem to be entitled to compensation for his injuries from the town for its manifest neglect. In that case, as in the case at bar, the passenger was entitled to protection, and had a right to expect it because the law required it; and he seems therefore justly entitled to compensation *548from some one for injuries occasioned by the want of such protection. As between the defendant and the corporation, their respective duties and consequent liabilities were rather successive than co-existent. The defendant was bound to provide such immediate protection as his own acts rendered necessary, but only until time and opportunity had been afforded for the corporation to assume and perform that duty in his stead.
In the case cited several days elapsed, after the excavation and after the town officers had received notice of its existence, before the accident occurred. The duty therefore which at first rested upon the party making the excavation to provide protection against the danger he had thus created, had shifted from the defendant to the town before the accident, and thus the defendant had become exonerated from his original responsibility. But in the case at bar the accident occurred the night after the making of the excavation, and before the officers of the city could be presumed to have notice of its existence, or had in fact any opportunity to erect the fence or railing which the safety of passengers required.
In Hardcastle v. The South Yorkshire Railway Co., 4 Hurlst. & Norm., 67, the defendants made a reservoir, near to, but not adjoining a public highway, and omitted to inclose it from the way. The plaintiff’s intestate by accident strayed from the way in the night, and falling into the reservoir was drowned. There the defendants had a right to make the reservoir, and no law required that they should fence it in, or required any person or corporation to erect a fence or barrier along the way to prevent travelers from straying off from it. The deceased was bound to know the law, and therefore had no right to expect such protection, and voluntarily assumed the risk of traveling in the dark without it. So that, in reference to his rights, the defendants were chargeable with no wrong and no neglect.
Hounsel v. Smyth, 7 Com. Bench, N. S., 729, was a case of the same character, with this element in addition, that the plaintiff went off from the public road and upon the defendant’s land intentionally, and not by accident.
*549In these cases it was conceded that if the reservoir in the former, and the quarry in the latter, had been so near the line of way that a traveler on the way might have fallen or been thrown therefrom directly into such reservoir or quarry, they would have constituted public nuisances, and the makers of them would have been responsible accordingly.
Under our statute an excavation of such character and di'mensions and so near to a highway as to endanger the passage of travelers, being unguarded, becomes a public nuisance, whether it adjoins the way or not, because it in fact endangers passengers on such way, and then it is the duty of the public to provide for travelers adequate security against such danger, by the erection of a fence or railing between the excavation and the way. And thus the nuisance is in effect abated.
While then we reject the rigid test of liability propounded by the English judges, it will be perceived that the difference between us arises out of the operation of our statute, rather than from any difference of opinion in relation to the principles of the common law applicable in cases of this kind. ,;
Secondly. The defendant in this court contends, that notice to Noyes, the street commissioner, of the existence and condition of the excavation, was notice to the city, and that the city thus having notice through Noyes of such excavation, was by its own negligence in relation to it precluded from recovering against the defendant. And he claims a new trial because the superior court omitted to charge the jury as he requested—that if they should find that the work of making the excavation was done by, or under the superintendence of Noyes, he being then street commissioner, the plaintiffs could not recover. It is a sufficient answer to this claim to say, that the motion expressly states that “ no evidence was offered to show that Noyes assisted in making said excavation personally after the noon of the day before which it was finished, or that he had any knowledge that said excavation was left without protection; ” so that the point could not be made upon any evidence before the jury, and for that, if for no other reason, the defendant was not entitled to the charge requested.
*550Under the motion in arrest, the defendant claims that the declaration is insufficient.
First, because it is not alleged therein that the premises in which the excavation was made were in the defendant’s occupation. But the plaintiffs’ right to indemnity from the defendant was in no way dependent upon the defendant’s occupancy of the land. An entire stranger, one having no interest in the land and claiming none, by removing the fence, making the excavation, and leaving it as the defendant did, would have incurred the same liability as if he had been the occupier and owner both. In this declaration the defendant is called upon to answer for his own misconduct, not for the misconduct of another. He is charged with the consequences resulting from the existence of the excavation because he made the excavation and left it unguarded, not because he owned or occupied the land.
The cases cited by the defendant’s counsel on this point seem inapplicable. In Hilliard v. Richardson, 3 Gray, 350, a carpenter had undertaken to alter and repair a house on the defendant’s land and furnish all the materials for a price agreed upon. He employed a teamster to draw the lumber, and the latter left it in the street. The defendant had no rightful control over the lumber and assumed none. The court held that the teamster was the servant or employee of the carpenter, not of the defendant, and that the latter was not liable. Blake v. Ferris, 1 Seld., 48, was a case of the same character, and determined by the application of the same principles. In the case of Lowell v. Spaulding, 4 Cush., 277, there was a cellar-way under the sidewalk, into a house owned by the defendant but occupied by his tenants. The door covering the cellar-way was out of repair, and a passenger on the sidewalk was injured in consequence. The court held that, in the absence of any agreement between the landlord and the tenants, and as between the latter and the public, it was the duty of the tenants to repair, and that the landlord was not responsible for their neglect. And in Coupland v. Hardingham, 3 Camp., 398, which was an action for an injury occasioned by the want of a railing between the street and an area in front of the *551defendant’s house, the defense set up was that the premises were in the same condition when the defendant took -possession and long before. Lord Ellenborough held that the antiquity of the nuisance was no justification for its continuance ; that it was the duty of the occupier of the house to guard against the danger to which the public was exposed, and that he was liable for the consequences of having neglected to do so in the same manner as if he himself had originated .the nuisance. We have no occasion to question the correctness of any of these decisions, but we think they have little if any bearing upon the question now before us.
Lastly. The declaration is claimed to be insufficient because it is said that it is not alledged that it was the duty of the defendant to erect a railing, and that no facts are stated from which such duty is inferable. But the plaintiffs’ claim was that by the removal of the fence the excavation became dangerous to passengers on the street, and imposed a new duty upon the city to erect a railing at that place, and that until the city could perform that duty the defendant could not leave the excavation unguarded without a culpable disregard of the public rights and the security of travelers on the street. And this claim we think is set forth in the declaration in appropriate language and with all necessary allegations.
We think the declaration is sufficient.
In this opinion Hinman, 0. J., concurred. Butler, J., dissented upon the principal point in the case. Dutton, J., having tried the case in the court below, did not sit.