.(dissenting). My view of this case is that the plaintiff is not- entitled to recover- upon the undisputed facts disclosed by the testimony. The city of Baltimore was not, in my opinion, negligent. The excavation which was being made was in the course of repairs and improvements of the public highway. This excavation was 30 feet from the beaten track and that which was used by the public. One who kept within the track was far removed from any danger on account of the excavation. The city erected temporary barriers, and, as an additional protection to approaching travelers, also placed red lights to mark the line within which a traveler was to go. These lights, five in number, marked the south side of the roadway. A red light upon a highway is a signal of danger, and it warns the approaching traveler to take notice and make reasonable investigation before proceeding. In this case Hooper, who was driving in the nighttime a vehicle propelled by steam, admits that he made no such investigation; that from the hill which he was descending he inferred that the two lights, which were some distance apart, marked the two sides of the proper way, and, without stopping to look or make any examination whatever he pursued this route. I do not agree that this action on his part was such as a prudent person would have taken under the circumstances. In addition to the fact that he says he made up his mind as to the proper way when some distance off, he states further that the red lights displayed along the roadway meant nothing to him; in other words, that he paid no regard to the ordinary signals which are displayed to warn a traveler that he is in the presence of danger. The rule that the negligence of the driver cannot be imputed to a passenger who in no way participates in the negligent act does not, I think, apply in this case. That rule is only applicable where the road authorities or the defendant in the action has been guilty of negligence in the outset; that is, before that rule can be invoked there must be negligence on the part of the defendant, but for which the accident would not have occurred. In such instance the law says that the defendant cannot excuse himself from responsibility for such negligence where injury results to an .innocent passenger because the driver of the vehicle was himself negligent or did not use that care and precaution which devolved upon him. As I have said before, the city of Baltimore in this case, to my mind, had done all that was required of it, and therefore was not negligent at all, and *649that this accident was due solely to the negligence of this driver of his steam machine upon the public highway, and his absolute refusal to take notice of signals which were ample for his protection. What is called “Merryinan’s Lane,” the road in question, had been used as a public highway for 30 years. The declivity on the south side had existed for all this period, and no barriers or other signals at the point of the accident had been deemed necessary. The ledge of the declivity was originally 39 feet from the south line of the traveled roadway, and the excavation which had been made by the city in the course of repairs had taken off 9 feet, still leaving 30 feet of space from the south side of the track to the point of danger where the automobile tumbled over. The well-defined, traveled roadway at the place where the automobile left it is shown to be 23 feet in width, clear and unobstructed, and there was no danger of accident so long as the traveler kept anywhere within that beaten track. Cities are required to keep the streets in a reasonably safe condition for persons traveling in the usual modes by day and by night and exercising ordinary care. This is the general principle. Fences or barriers are not ordinarily required along a highway to prevent travelers from straying out of its limits, but. if there are excavations or other dangerous defects or obstructions close to the way, the city or local authorities, as the case may be, should erect barriers or take proper precautions to warn travelers of the danger. Iylliott on Roads and Streets, p. 4.53. Though the municip'ality is required to keep in repair a traveled path of suitable and sufficient width within the limits of the highway, the law does not ordinarily require such path to be the whole width of the highway, and hence the municipality will not be liable for defects or obstructions in the part of the highway outside this traveled or wrought portion and not so connected with it as to affect its safety. A forceful case on this point is Farnum v. Concord, 2 N. H. 392. The town, which was the defendant in this case, was held not liable for an injury occasioned by an excavation by the side of the road, although the traveled way was only 12 feet wide and another excavation existed on the other side, and the whole vicinity by the side of a river was covered with nearly 2 feet of water; the court saying that it was no fault of the town that the guide, even under these circumstances, conducted the plaintiff’s team out of the traveled way.
Whilst in country roads only a sufficient roadway to admit travelers to pass and repass in safety is required, it seems to be the settled law that the rule in cities is different, and that there the whole width of the street should be kept in proper repair. In our case, the place where the accident occurred was not immediately in the city of Baltimore, but was some distance out in the suburbs, and the excavation which was being made was not upon the roadway at all, but was, as stated before, 30 feet distant from it. The proximity of the excavation or dangerous point to the traveled way Is the controlling one in regard to the erection of harriers, and I have, after much research, found no cases where there was a plainly outlined, safe roadway of the required width and the excavation or danger point was 25 or 30 feet from it that barriers were required to be erected for the safety of the traveler. If, however, there is a dangerous place, such as a declivity or excava*650tion, so close to the highway or to the traveled part thereof as to render the latter' unsafe for travelers in the absence of a railing or barrier, the want of such railing or barrier, constitutes a defect in the roadway itself, for injuries from which the municipality is liable. But all the decisions relating to this point, so far as I have found, are instances in which the dangerous place was within a few feet of the traveled way, and T do not understand that even in these instances insurmountable or impregnable structures are required, but only such barriers or signals as will warn the traveler of the danger and advise him, so that by the use of reasonable care on his part he may pursue the safe track.
It was insisted by the defendant in error in this case, and the court, in its opinion, seems to take that view, that whether a barrier is necessary or that one sufficient has been erected is a question for the jury. As a general proposition that is true, and yet there is no principle more definitely settled than that, where the facts are undisputed or admitted, negligence alleged upon such facts is a question of law for the court.
In this case, the principal facts are uncontroverted. The danger' point was 30 feet from where the driver of the automobile left the road. The city had taken precaution not only to erect barriers, but had placed red lights to give warning of danger and mark the line of the road. This, in my opinion, was all that the city was required to do, and if the driver of a vehicle, whether propelled by steam or otherwise, proceeded in the face of these barriers and warnings, which he was bound to see if he used ordinary prudence and care, he did so at his own peril, and the injury which resulted to him or to his passenger was due to his own recklessness, and not to any negligence on the part of the road authorities. I cannot consent to the proposition that the city is to be held responsible for an inference drawn by the automobile driver when he was some distance away as to what the red lights indicated, for the facts show conclusively that his inference was erroneous, and a moment’s stop at the first red light, and even a casual examination of surroundings, would have disclosed to him his error. In my opinion, the fact that there were excavations or other unsafe places alleged or proven to be dangerously near the road at other points than where the accident occurred does not have any bearing in deciding this case. The principle is, the liability for an injury resulting from an unsafe highway must be based upon conditions at the point where such injury occurred, and not upon such as may exist at other points along the way. If, therefore, the barriers or signals, or both together, at the point where the automobile left the beaten track, were sufficient — and in my view of it they were — the city should not be mulcted in damages for an injury occasioned by the conduct of a driver who carelessly strayed from the way, and without taking notice of the warnings, which were ample,- heedlessly drove over a precipice 30 feet distant.
The law in regard to public roads has been heretofore administered in view of the character of vehicles and means of propelling which have generally been in use. The public highways have not until recently been used for the operation of cars and vehicles propelled by *651steam and electricity, and possibly in the further consideration by the courts of questions affecting the liability of municipalities, or communities for defective public roads these facts will play an important part. It is a matter of common knowledge that horses, the animals usually" employed in drawing vehicles upon the public highways, instinctively avoid danger. They will not go over a precipice nor step into a dangerous excavation. Even in the. nighttime, in the darkness, they will keep the beaten way. In the operation of a steam engine the whole responsibility rests upon the driver. He has no assistance from his motive power in discovering the presence of danger or avoiding it, and therefore, it seems to me, the inevitable consequence must he that the courts will be constrained to hold that a greater degree of care and caution devolves upon one who operates a steam machine upon a public highway than is required of one traveling in the usual maimer. But this last proposition is aside from the question involved here, and I merely mention it because it has occurred to me.
For the reasons given, I do not concur in the opinion of the court in this case.