The opinion of the Court was delivered by
Willard, A. J.The action was brought, under the statute, by the plaintiff, as the widow of James Johnston, deceased, on account of injuries received by the said James Johnston, by falling through a cellar door forming part of the sidewalk of Queen Street, and causing his death, on the ground that the cause of the injuries was the negligence of the defendants, a municipal corporation, in suffering the cellar door to be in an insecure condition, rendering the passage way unsafe for foot passengers.
The jury rendered a verdict for the plaintiff, under instructions by the Court, to which exceptions were taken, both as to matters charged and refused.
Two propositions are advanced by the exceptions: first, assuming the liability of the defendants, for injuries through their negligence, in not keeping the sidewalks in safe repair, and assuming that the side walk, at the place in question, was not in a due state of repair, as it regarded the safety of foot passengers, that the defendants are not liable unless either express notice of such defect is shown, or unless the defect was so notorious as to be evident to all who had occasion to pass the place; and, second, that they are only liable for the want of ordinary care and diligence.
Those propositions, as will be seen, involve different measures of . responsibility ; but if either affords the correct measure applicable to the case, then the Court, as requested by the defendants, was bound to submit such proposition to the jury, and failing to do so is error.
The charge contains the following language: “I don’t know whether it is necessary for me to say that the City Council is liable *239for ordinary, or only for extraordinary care ; but in this particular case, if any defect exists in that cellar door, which a careful examination would discover, they are liable.”
The charge contains other observations bearing on the same point, but the language above quoted may be regarded as fairly embodying the view of the law, under which the jury found their verdict.
The true rule of liability is that contained in the last proposition advanced by the defendants, that they were bound only to ordinary care and diligence, as it regards the safety of the passage way over the cellar door. The cellar door in question formed part of the surface of the sidewalk, used by foot passengers for the purpose of passage, and was within the duty of repair, as incumbent on the City Council.
The verdict must be regarded as consistent with the idea that the structure in question was a lawful structure, inasmuch as the jury were so charged. Or, in other words, that the occurrence of this cellar door, as part of the surface of the passage way, in its connexion with the user of the open space beneath it, by the owner of the adjacent property, as means of access to the lower portion of his premises, was not a nuisance or unlawful obstruction of the common highway. Nor can the' verdict be questioned in this respect, as no exception appears to have been taken on that account by the plaintiff.
There is no good ground to doubt the correctness of this view. In the case of Wendell vs. Troy, 39 Barb. S. C., 329, referred to by the appellants, the proposition was advanced, that “in regard to streets and highways, their use is designed for the public for the purpose of passage, travel and locomotion, and the use of them by an individual simply for his own convenience and accommodation, unaccompanied with the public user just mentioned, as for drains, sewers, vaults or cess pools, is unauthorized, and essentially a nuisance, and makes the party building or maintaining such nuisance liable for all damages sustained in consequence of the improper appropriation of the street or highway to such mere personal use.”
If this is sound, it-would follow that, when such user is authorized by the city, the latter would become liable, to the same extent as the person actually creating the nuisance; such was the view taken in that case, the city of Troy being held liable for damages resulting from the caving in of a private drain, laid under a public street, without regard to any proof of particular negligence on the part of the city.
*240The conclusion, in the case last cited, vested upon the erroneous assumption that individuals could not rightfully acquire, or hold, any personal interest, privilege or license in either the surface or soil of a public street. This proposition is not true of a country highway, for such an interest may be enjoyed, either by the owner of land adjacent to the highway, or by the grant or license of such owner, although subject to the common and public user of the highway, as such. City streets are highways, having certain peculiar attributes; the ownership of the soil of the street may be vested in the municipal corporation, instead of in the adjacent owner; and the user, itself, is more comprehensive, both as it regards the surface and the soil beneath it. A street is, ordinarily, designed as a means of affording passage, transportation, light, ventilation, drainage, and access to the particular dwellings abutting upon it. The right of user is not limited to the surface, but extends to the soil beneath the surface, and has been termed an “ urban servitude.”
Without limiting the extent to which the public may claim an exclusive right to the actual occupation of the surface or soil, it is safe to say, that when the soil beneath the surface is not needed for any such public purpose or common user, it may, subject to the license and consent of the corporation, be used by the adjacent proprietor for a purpose not inconsistent with the public and common right of user, and which affords to him a peculiar and personal advantage in respect to any of the foregoing objects, for which a highway is designed. In other vrords, he may; by the license of the corporation, have the right to lay a private drain under the street, or to have an open space or area for light and ventilation, or for access to his premises, provided the public and common user is not interfered with. When the ownership of the soil is vested in the city, it is clear that its license is equally good authority to justify such particular use by the adjacent proprietor. The foregoing view is sustained by Chicago vs. Robbins, 2 Black, U. S., 418 ; Bacon vs. Boston, 3 Cush., 174.
Under the verdict, it must be assumed that the opening into which the plaintiff’s husband fell, was for a purpose within the class of general objects for which streets are designed, and that, although the adjacent proprietor was enjoying thereby a particular and individual advantage, yet that such enjoyment was justified by the license of the city.
The city was bound to see that the opening was properly covered. Chicago vs. Bobbins, 2 Black, 418. It is not to be assumed or in*241ferred, that the structure designed to cover the opening was defective, either as to plan, materials or workmanship; on the contrary, it must be assumed, under the verdict, that the defect arose subsequent to its construction, either through injury received, or by reason of natural decay.
Hence, it follows that the liability of the corporation must be considered solely under the duty to repair and keep safe. In such case their liability for the non-performance of such duty is measured by what ordinary care and diligence demands. Weightman vs. Washington, (1 Black, U. S., 39,) places the liability of a municipal corporation, in such cases, on the same footing as that of a private individual. In Winn vs. Lowell, (1 Allen, 177,) it was held, in reference to the duty of repair, that “ the city is not bound to take the highest possible care, but only ordinary care. They are not insurers against accident.”—Shearm. & Redf. on Negligence, Section 149.
The charge, that “ if any defect exist in that cellar door, which a careful examination would discover,” the defendants were liable, should have been limited, by narrowing down the duty of the defendants in detecting the existence of such defect, to what was demanded by ordinary care and vigilance. As the charge stands, it might be interpreted as requiring the exercise of more than ordinary care.
It is in'proof that means were taken by the defendants to ascertain the safety of the cellar door previous to the accident. Of the sufficiency of the means under the rule, the jury were entitled to judge. The charge could not properly relieve them of the duty of applying the facts to the rule of law requiring ordinary care. On the other hand, the request to charge that either express notice or a defect so notorious as to be evident to all who had occasion to pass that place, must be shown before defendants can be charged, is too broad to square with the rule of ordinary care and diligence.
One charged with the care of a machine or structure of such nature that the consequences of a defect might prove dangerous to life or property, is bound, by the rule of ordinary diligence, to a higher degree of care than a person charged with no such duty, though not compelled to look beyond the safeguards sanctioned by common use in such cases, as he would be if bound under the rule of extraordinary care.
The city, having the care of the streets, is bound clearly to a *242higher degree of care, as it regards obstructions, than a mere passenger along the streets busied with his own interests. Where the defendants are not bound, within the limits of ordinary care, to look for defects, in order to charge them with any such defects, notice of its existence must be brought home to them, either express or inferential, but it is too much to say that, when a defect is patent, they are under no greater responsibility to sée it than a mere passer by.
The charge is clearly defective in not presenting to the jury the true measure of the duty of defendants, out of which t.heir supposed liability springs, namely, the exercise of ordinary care and vigilance in keeping the surface of the streets, including the structures forming part thereof, in repair, so as to be safe for passengers.
The judgment and verdict should, therefore, be set aside, and a new trial ordered.
Moses, C. J., and Wright, A. J., concurred.