It may he that the alley in question was on the map of the city, and that it was dedicated and intended as a public alley; but there is no proof whatever that it has ever been used or treated as a public highway. On the other hand, the proof shows that, previous to the excavation or cutting down of Sixteenth street, the plaintiff’s husband cultivated the alley, and that he had a gate across it when the cutting was done, which was several years before the injury complained of in the present suit; nor is there any proof that it has been since used as a highway, or that the defendant has maintained a cut at the intersection of the highway with the street. Its agents could not have been conscious, either when the improvement was made or since, that such an embankment and cut were dangerous to the traveling public; nor do we think that the defendant’s servants have been guilty of simple negligence in making and maintaining the improvements at this particular point, or that the condition of the street will render it a nuisance as set up in the third count of the complaint.
The trial court did not err in giving the general charge requested by the defendant, nor was any reversible error committed in the ruling upon the evidence. Since the plaintiff did not show a case of negligent liability, the ruling upon the demurrer to plea 5, of contributory negligence, whether correct or not, was without injury to the plain! iff.
The judgment of the city court is affirmed.
Affirmed.
Dowdell, C. J., and McClellan and Sáyre, JJ., concur.