McLENNAN, J.:

The rule of law applicable to the facts in this case is well settled.

In the case of Beck v. Carter ( 68 N.Y. 283) the head note is as follows: "If the owner of land make an excavation thereon adjacent to a highway; or so near as to make the use of the highway unsafe or dangerous, he will be liable to a traveler who, while using ordinary care, falls into it and is injured."

In that case the court had charged the jury as follows: It makes "no difference whether the excavation was seven, or nine, or ten feet from the originally established boundaries of the thoroughfare (alley); if it was so situated that a person lawfully using the thoroughfare, and in a reasonable manner, was liable to fall into it, the defendant was liable." The Court of Appeals held that such charge was proper.

In Shearman Redfield on Negligence (§§ 390, 391) it is said: "It is gross negligence to construct a passageway along a precipice, without having sufficient guards for the protection of travelers."

Wharton on Negligence (§ 976) says as to negligence in fencing roads: "The true test is `whether there is such a risk of a traveler, using ordinary care in passing along a street, being thrown or falling into the dangerous place (adjoining the highway) that a railing is requisite to make the way itself safe and convenient.'"

The case of Morrell v. Peck ( 88 N.Y. 398) was an action brought to recover for injuries sustained by the plaintiff, because a bridge, upon which he was traveling at the time of the accident, was without guards or railing, and had been knowingly and negligently left so by defendant. The plaintiff, who was walking in the traveled track of the highway in the evening, encountered a loaded team on the bridge, stepped aside to allow it to pass, and in so doing, without negligence on his part, fell over the unprotected side of the bridge and was injured. The verdict for the plaintiff was sustained.

The case of Maxim v. Town of Champion (50 Hun, 88) was an action brought against the town of Champion to recover damages for injuries sustained by the plaintiff, by falling over an embankment to a bridge which was not guarded. It was held that it was a question for the jury, under all the circumstances disclosed by the evidence in that case, to determine whether the defendant was guilty of negligence in permitting the embankment to remain unguarded, and this notwithstanding the fact that it had been in the same condition for a period of sixty-eight years. The case was affirmed in 119 New York, 626.

If there had been no guard upon the sidewalk leading across the ditch in question, and the plaintiff while upon such sidewalk, and while exercising ordinary care and prudence, had stepped a little to one side, or had been blown by the wind a little to the east and had fallen into the ditch, there could be no question as to her right of recovery. The circumstance that the ditch was left unguarded at the point where the sidewalk terminated, rather than opposite the sidewalk itself, cannot be of importance.

If the evidence of the plaintiff is to be believed, she was proceeding along the public highway leading to her home in the most careful and prudent manner. She was attempting as best she could while crossing the defendant's two tracks, and the six feet between the southerly track and the ditch, to take such course as would lead her to the sidewalk crossing the ditch. While so proceeding in the darkness, she went a little too far to the east, there being no light, no walk or well-defined path to guide her, and came to the ditch, which at that point was wholly unguarded, fell into it and received the injuries of which she complained. So far as the plaintiff was concerned, the guard across the ditch along the sidewalk was of no use to her. The accident occurred and the injury was done before she reached such sidewalk.

Upon all the evidence in this case, it was for the jury to say whether or not the defendant was guilty of negligence in constructing and maintaining a ditch of the character of the one in question, in such close proximity to the highway that a traveler, by making a single misstep when attempting to cross such ditch, should have fallen into it.

It was also a question of fact for the jury to determine whether or not, under the circumstances, the plaintiff was guilty of contributory negligence.

Both questions were submitted fairly and impartially by the learned trial justice to the jury, and the jury having found adversely to the defendant, no reason is apparent why such finding should be disturbed.

None of the exceptions to the reception or rejection of evidence, or to the charge of the learned trial justice, taken by the defendant, call for reversal of the judgment or order appealed from.

The judgment and order appealed from should be affirmed, with costs.

All concurred, FOLLETT, J., not sitting.

Judgment and order affirmed, with costs.