In this case the court submitted to the jury the question whether the injury was received on the sidewalk or the cross-walk. The jury found that the place where the accident occurred was where the sidewalk was torn up. But the court instructed the jury that the six feet of walk filling the corner of Pine street and Rose avenue was, according to the custom and practice of the city, sidewalk, and not cross-walk, as it was required to be built by the lot-owner and not by the city. This would have undoubtedly been correct, had it not been for the action of the city in tearing up and removing this walk, and excavating under it, in the improvement of Rose avenue, making a portion of it, at least, a part of Rose avenue, as excavated and cut down. This was permitted so to remain for a long time, and the indications from the record are that it was intended to be left so permanently.
The jury must have found that, because the plaintiff slipped within this six feet, which had been sidewalk, which slipping caused his fall, thereby his injury was received from a defect in a sidewalk and not in a cross-walk, and therefore the plaintiff could not recover. But the allegation of the declaration, also, is that plaintiff fell into the excavation; that the defendant— .
“Wrongfully, unjustly, and negligently allowed said crosswalk to continue in said dangerous, .unsafe, and unfit condition, and negligently permitted the said cross-walk to remain so defective and badly out of repair, and negligently left said cross-walk in such an unguarded condition, and without proper and appropriate protection or signals, that by *284means of the premises, and for want of proper and sufficient care in keeping said cross-walk in safe condition, and in allowing said excavation aforesaid to remain open and unguarded, the said plaintiff, who was passing upon and along said cross-walk, as he had a right to do, and using due and reasonable care, fell into said excavation so in and under said cross-walk aforesaid, and thereby the plaintiff was greatly injured and hurt.”
And the testimony is undisputed that Alexander was found unconscious in the excavation.
It seems to me that the declaration sufficiently alleges that the injury was the joint product of the tearing up of the cross-walk and the excavation in the street under it; and the evidence is undisputed that, before this grading and excavating of Rose avenue, there was, and had been for some time, a cross-walk extending across Rose avenue at this point.
I cannot agree with Mr. Justice Champlin, that this case, in respect to this cross-walk, is governed by Williams v. City of Grand Rapids, 59 Mich. 51 (26 N. W. Rep. 279). In that case the city of Grand Rapids had never built or maintained a cross-walk at the point where the injury occurred.
Here the city had built and maintained a cross-walk, and thereby invited people to use it. Having done this, the city could not tear it up and make an excavation four feet deep, and leave the same unguarded by barriers or lights in the night-time, and then escape responsibility because there was no longer any cross-walk there. If so, then the city might remove part of the cross-walk, and be acquitted of liabilty because there was no cross-walk at the particular snot where the accident happened.
Nor can the city escape responsibility because the crosswalk was removed in the improvement of Rose avenue, on the principle enunciated in Detroit v. Beckman, 34 Mich. 125, and other cases cited by my Brother Champlin.
While the city of Big Rapids was improving Rose avenue, or even after the improvement had been completed, it had no *285right to leave Pine street, which crossed Eose avenue, open to travel, unless the crossing of those two streets was made reasonably safe and fit for travel. It was the duty of the city either to make the descent from Pine street into the excavation on Eose avenue safe, or, if it' must necessarily be left dangerous to travelers in the night-time, without warning, to provide, by barriers, lights, or otherwise, some precaution against accidents like the one here, which the record shows was liable to happen at any time, in the condition in which this excavation was left. See Southwell v. Detroit, 74 Mich.-(42 N. W. Rep. 118).
This is not an action based on a defective cross-walk where none existed, but the allegation is that a cross-walk, which before that had existed, had been negligently torn up, and an excavation made under it in the highway; and that this state of things was negligently permitted to exist, and did exist, at the time of the injury, and was the cause of it.
The circuit judge, in my opinion, erred in confining the jury too closely to the place where the plaintiff slipped in his fall. If it were a fact that he slipped upon a portion of the walk which was a sidewalk, yet if he thereby fell into this excavation, which was in Eose avenue, .and under the place where the cross-walk was before it was torn up, and the injury received was occasioned by the fall into this excavation, the fact of the starting of his fall happening on the sidewalk would not preclude his recovery.
I further think that when the city removed and tore up this sidewalk, and made an excavation in the place where it had been, by this excavation making it a part of Eose avenue, and permitted it so to remain, they, in effect and in law, caused it to be a part of the street, and that if the slipping and falling of plaintiff were caused by it he could recover, if without fault himself, under the declaration filed in this cause. When this case was here before (see 70 Mich. -, 38 N. W. Rep. 227), we held that the city would be liable for *286injuries received by falling into this excavation left by the city after taking up the cross-walk and grading the street, although there was no cross-walk there at the time of the injury.
We see no difficulty in the way of recovery by the plaintiff, as the proofs stand in the record before us, if the jury should find that the plaintiff was injured without fault of his own. The negligence of the city is apparent.
The judgment must be reversed, and a new trial granted.
Sherwood, C. J., and Long, J., concurred with Morse, J.