The opinion of the court was delivered by
Royce, Ch. J.The demurrer puts in issue the sufficiency ot the declaration. If that is bad in substance, there is no occasion to examine the special causes of demurrer assigned to the pleas. The only substantial difference between the first count in this declaration and the-one that has been adjudged bad, is in the addition of the averment that the deceased, while passing along and over said public highway without any knowledge that the same was unsafe and dangerous, did enter into said hole and excavation, he then having a lawful right so to do.
The hole and excavation referred to in that averment is previously described in the declaration as having been made by the defendant without right, by digging for sand in the bank within the limits of the highway. The negligence that is alleged is, in leaving said hole or excavation in such a condition that it was unsafe and dangerous for any person entering therein, by reason of the liability of the covering to said hole or excavation to fall in. It is alleged that the' deceased did enter into said hole and excavation, he then having a lawful right so to do, and the sand and earth covering the same fell in upon him and killed him.
In an action of tort it is essential that the act complained of should be legally wrongful as regards the party complaining; it must prejudicially affect him in some legal right. The legal right of the deceased to the use of the highway as a traveller, was, that it should be reasonably safe for that use ; and he had no right to complain of any act done within the limits of the highway that did not impair or interfere with that right. It will be obsered that *561it is not alleged that the hole or excavation made by the defendant was within the travelled track, or so near to it that it rendered the highway unsafe; or, that the deceased was forced into the hole or excavation from some necessity ; but from what is alleged it would appear that he entered it voluntarily. There is no allegation that the defendant by his conduct had invited the deceased to enter into the‘hole or excavation, or given him to understand that he was at liberty to do so. There is no allegation that the defendant owed any duty to the deceased to protect him against such accidents as might happen to him by reason of the' hole or excavation being left in an unsafe and dangerous condition. The fact that the hole or excavation was within the limits of the highway does not vary the liability, unless by reason of its being within such limits it is shown to have operated to the injury of the legal rights of the deceased. If the hole or excavation had been made outside of the limits of the highway, it would hardly be claimed that upon such facts as are alleged in this declaration, a recovery could be had. It does not follow that because the deceased had the lawful right to enter into the hole or excavation, that the defendant was bound to protect him from injury while in it. . The duty of the defendant was to protect the deceased from injury as far as the law required. The standard of duty to be observed by him did not embrace protection from such injury as is alleged in this declaration. There is nothing of substance in the second count to distinguish it from the first, that in any way affects the question of the sufficiency of the declaration.
The declaration is fatally defective and the judgment is affirmed.