Little Rock Traction & Electric Co. v. Dunlap

Riddick, J., (after stating the facts.) The plaintiff contends that the company was guilty of negligence in failing to put railings along the side of the bridge constructed by it across the cut in the street, and that this negligence occasioned the injury. While the company was not required by any order of the city or its enginéer to put railings along the sides of the bridge, still there is nothing in the evidence to show that it was forbidden to do so, and the question presented is whether the jury were justified in finding that the company was guilty of negligence in failing to put up railings. If one should, with the permission of the city, for his own advantage cut a ditch across a public street, and leave it unguarded and in a condition liable to injure those passing along the street, he would be guilty of negligence, and liable for injury occasioned thereby. It is also clear that if the city should dig the ditch, aud if one should alter or enlarge the ditch so as to make it still more dangerous, he might become liable for injury caused by such change in the character of the opening. 1 Shearman & Redfield on Neg. (5th Ed.) § 359, and eases cited. The deep cut across the street, into which plaintiff’s horse fell from the bridge constructed by defendant, was, if left unguarded, more or less likeh to cause injury; and, although the company did not make the ditch, and, is- not responsible for it, still it was bound to exercise due care not to increase the danger. If the bridge had not been erected, the city could have closed the ends of the street abutting on the cut, so as to prevent persons or animals from falling into it, but after the erection of the bridge the ends of the street could not be entirely closed, as a passage was necessary for the- cars of defendant. In other words, the bridge constructed by the company for its own convenience made it impossible to guard the cut, except by flooring the bridge and then placing railings along its sides. The bridge was in a suburb of the city, where the owners of stock were permitted to let them run at large upon the streets. In passing this street, stock would be apt at times to attempt to pass over this narrow bridge, and, if frightened while upon it, were in danger of falling from its unguarded sides into the cut below, as plaintiff’s horse fell. This, bridge, in effect, extended the sides of the cut from which the animals could fall, aud, on account of its narrowness and unguarded sides, was more or less dangerous. Under these circumstances, we think it was a question for the jury to say whether this narrow unguarded bridge connecting the ends of the-street severed by the cut did not add to the danger of the cut, and whether the company was not guilty of negligence in leaving it with unguarded sides. Though the case is not free from doubt, we are of the opinion that the questions of negligence and contributory negligence were properly submitted to the jury. Judgment affirmed.