Smith, P. J.
This was a suit begun in the circuit court of Jackson county, by plaintiff against defendant to recover damages for personal injuries alleged to have been-sustained at the hour of ten o’clock on September 11, 1887, by falling into an excavation in one of the streets of defendant, which it had negligently permitted to remain open and unguarded at night. The answer was a general denial supplemented with the plea of contributory negligence. There was a trial, and judgment for the plaintiff, from which defendant has appealed.
I. The first ground of the defendant’s appeal is, that the circuit court erred in refusing to give its first instruction which was in the nature of a demurrer to the evidence, on the ground that it disclosed no fact from which the law would deduce the inference of negligence. A solution of this question must be made in the light of so much of the evidence as is pertinent thereto, and of which it is proper here to summarize.
R. Pendleton, a witness for plaintiff, testified that Payne & Ott had made an excavation for a cellar for a building and that re extended “clear across the sidewalk out to the curbstone,” and that it looked to be eight or ten feet deep ; that it had been ■ there quite a little time before the plaintiff was injured ; that plaintiff left witness’ liyery stable, to go home, after it was dark ; that there was no signal or other lights in that part of the street where the excavation was situated, on the night plaintiff was hurt, nor were there any barricades across the sidewalks at that place at that time; that there were no barricades across the sidewalk on the day (which was Sunday) preceding the night the plaintiff
[473]*473fell into the excavation; called the attention of the mayor of the city, Alderman Chesbro and the contractor in charge of the excavation, to its dangerous character. W. S. Furnish, for plaintiff, testified that he frequently passed the excavation after night, and that he never saw any signal lights there, but that there were barricades around it probably half of the time before plaintiff got hurt. William Ray, for. plaintiff, testified that he passed the excavation in going to and returning from his meals each day ; that there were no barricades up there on the night plaintiff fell in ; that there were neither signal lights nor barricades there when he took plaintiff out of the excavation; that there had been barricades up there part of the time before plaintiff was hurt, but that he noticed none there the Saturday before plaintiff was hurt. J. N. Wood testified that he passed the excavation every day, and that he never saw any barricades on the north end of the excavation. C. S. Chesbro testified that he was a member of the board of aldermen of the city, and that he had “noticed the barricades in a casuai way,” and that he had “ seen it down and up ; ” that he lived on the opposite side of the street from the excavation. Ben. Garth, for plaintiff, testified that, while the excavation was being made, he worked near it; that he had seen it “lots of times ” at night when not barricaded ; that, on the Sunday preceding the night of the accident, it was not barricaded ; that nearly every night that he passed the excavation the barricade was down ; that, on the Saturday night before the plaintiff fell into the excavation the barricades were down. John Weitzel, for plaintiff, testified that the excavation was right south of his shop, and prior to the time plaintiff was hurt the excavation was sometimes barricaded ; that, on the Saturday evening preceding the Sunday night plaintiff was hurt, he but an old wheelbarrow on the excavavation wall which extended across the sidewalk and [474]*474from twelve to eighteen inches above it; on Monday morning following, he noticed the wheelbarrow was in the excavation. The plaintiff testified that he started to walk home on the Sunday night he was injured, from the livery stable of the witness Pendleton, and that it was dark, and, there being no signal lights or barricades around the excavation, he walked into it, from which he received severe injuries, describing them. The defendant’s witness, T. B. Smith, testified that he was the contractor, who made the excavation, and that on the Saturday night before the plaintiff was injured he had the barricade put up. A. R. Johnson, for defendant, testified that he was employed by contractor Smith, while making the excavation and that “it was always barricaded at night,” and that he put up the barricades the Saturday night before the accident; that he securely nailed it on the outside of the sidewalk to a telegraph pole, and on the inside to the building, so strongly that a man going against it would not push it down. C. Ott, for defendant, testified that the barricade was up at six o’clock on Saturday evening before the accident. T. O. Caldwell, for defendant, testified that he was mayor of the city before and at the time plaintiff was injured, and that, after witness Pendleton had told him that the excavation was a dangerous place, he had spoken to the workmen, asking them to close it up every night, and that on every evening after that he had noticed that it was closed.
An analysis of the foregoing excerpts from the evidence discloses a palpable conflict in respect to the issue of negligence. It is made to appear from defendant’s evidence that on the Saturday evening, the day preceding the Sunday night on which plaintiff was injured, that a barricade had been placed across the sidewalk on the north side of the excavation. It is made to appear by the plaintiff’s evidence that no signal lights had at any time been placed, during the nighttime, at the excavation, and that a. barricade had only [475]*475occasionally been placed there during the night-time, prior to plaintiff’s injury; that no barricade had been put up there on the Saturday preceding the Sunday night of the plaintiff’s injury, nor were there either barricades or signal lights there on the night of the injury. I should have, myself, thought that upon defendant’s own evidence the case should have been submitted to the jury.
The question is, what is the duty of a person who makes an excavation in the public highway, such as he may lawfully make for temporary purposes of building and the like \ The performance of the work necessarily renders the street unsafe for night travel. The danger arises from the nature of the improvement, and if it can be averted only by special precautions, such as placing guards or the lighting of the street, the corporation which has authorized the work is plainly bound to take these precautions. Storrs v. Utica, 17 N. Y. 104; Grant v. Brooklyn, 41 Barb. 381. Persons travel all hours of the night, and the obligation to warn travelers of the excavation, which they have authorized to be made, ought to continue all the time. It would seem that since persons are entitled to travel the streets of a city at all times, that it ought to be its duty to protect them at all times, while so doing, against damages arising from an unguarded excavation therein. But it , is unnecessary to pursue this line of thought further, since the rule of decision seems to be quite uniform, that it is sufficient to show that proper signals and' safe-guards were placed about an excavation on quitting work; and neither the corporation nor the contractor is liable if a wrongdoer removes the signals or barricades during the night. Dooly v. Town of Sullivan, 11 N. W. Rep. (Ind.) 816; Doherty v. Waltham, 4 Gray, 596; Mullen v. Rutland, 55 Vt. 77; Parker v. Cohoes, 10 Hun. 531; Sevester v. Mayor, 47 N. Y. 341;
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Smith, P. J.
This was a suit begun in the circuit court of Jackson county, by plaintiff against defendant to recover damages for personal injuries alleged to have been-sustained at the hour of ten o’clock on September 11, 1887, by falling into an excavation in one of the streets of defendant, which it had negligently permitted to remain open and unguarded at night. The answer was a general denial supplemented with the plea of contributory negligence. There was a trial, and judgment for the plaintiff, from which defendant has appealed.
I. The first ground of the defendant’s appeal is, that the circuit court erred in refusing to give its first instruction which was in the nature of a demurrer to the evidence, on the ground that it disclosed no fact from which the law would deduce the inference of negligence. A solution of this question must be made in the light of so much of the evidence as is pertinent thereto, and of which it is proper here to summarize.
R. Pendleton, a witness for plaintiff, testified that Payne & Ott had made an excavation for a cellar for a building and that re extended “clear across the sidewalk out to the curbstone,” and that it looked to be eight or ten feet deep ; that it had been ■ there quite a little time before the plaintiff was injured ; that plaintiff left witness’ liyery stable, to go home, after it was dark ; that there was no signal or other lights in that part of the street where the excavation was situated, on the night plaintiff was hurt, nor were there any barricades across the sidewalks at that place at that time; that there were no barricades across the sidewalk on the day (which was Sunday) preceding the night the plaintiff
[473]*473fell into the excavation; called the attention of the mayor of the city, Alderman Chesbro and the contractor in charge of the excavation, to its dangerous character. W. S. Furnish, for plaintiff, testified that he frequently passed the excavation after night, and that he never saw any signal lights there, but that there were barricades around it probably half of the time before plaintiff got hurt. William Ray, for. plaintiff, testified that he passed the excavation in going to and returning from his meals each day ; that there were no barricades up there on the night plaintiff fell in ; that there were neither signal lights nor barricades there when he took plaintiff out of the excavation; that there had been barricades up there part of the time before plaintiff was hurt, but that he noticed none there the Saturday before plaintiff was hurt. J. N. Wood testified that he passed the excavation every day, and that he never saw any barricades on the north end of the excavation. C. S. Chesbro testified that he was a member of the board of aldermen of the city, and that he had “noticed the barricades in a casuai way,” and that he had “ seen it down and up ; ” that he lived on the opposite side of the street from the excavation. Ben. Garth, for plaintiff, testified that, while the excavation was being made, he worked near it; that he had seen it “lots of times ” at night when not barricaded ; that, on the Sunday preceding the night of the accident, it was not barricaded ; that nearly every night that he passed the excavation the barricade was down ; that, on the Saturday night before the plaintiff fell into the excavation the barricades were down. John Weitzel, for plaintiff, testified that the excavation was right south of his shop, and prior to the time plaintiff was hurt the excavation was sometimes barricaded ; that, on the Saturday evening preceding the Sunday night plaintiff was hurt, he but an old wheelbarrow on the excavavation wall which extended across the sidewalk and [474]*474from twelve to eighteen inches above it; on Monday morning following, he noticed the wheelbarrow was in the excavation. The plaintiff testified that he started to walk home on the Sunday night he was injured, from the livery stable of the witness Pendleton, and that it was dark, and, there being no signal lights or barricades around the excavation, he walked into it, from which he received severe injuries, describing them. The defendant’s witness, T. B. Smith, testified that he was the contractor, who made the excavation, and that on the Saturday night before the plaintiff was injured he had the barricade put up. A. R. Johnson, for defendant, testified that he was employed by contractor Smith, while making the excavation and that “it was always barricaded at night,” and that he put up the barricades the Saturday night before the accident; that he securely nailed it on the outside of the sidewalk to a telegraph pole, and on the inside to the building, so strongly that a man going against it would not push it down. C. Ott, for defendant, testified that the barricade was up at six o’clock on Saturday evening before the accident. T. O. Caldwell, for defendant, testified that he was mayor of the city before and at the time plaintiff was injured, and that, after witness Pendleton had told him that the excavation was a dangerous place, he had spoken to the workmen, asking them to close it up every night, and that on every evening after that he had noticed that it was closed.
An analysis of the foregoing excerpts from the evidence discloses a palpable conflict in respect to the issue of negligence. It is made to appear from defendant’s evidence that on the Saturday evening, the day preceding the Sunday night on which plaintiff was injured, that a barricade had been placed across the sidewalk on the north side of the excavation. It is made to appear by the plaintiff’s evidence that no signal lights had at any time been placed, during the nighttime, at the excavation, and that a. barricade had only [475]*475occasionally been placed there during the night-time, prior to plaintiff’s injury; that no barricade had been put up there on the Saturday preceding the Sunday night of the plaintiff’s injury, nor were there either barricades or signal lights there on the night of the injury. I should have, myself, thought that upon defendant’s own evidence the case should have been submitted to the jury.
The question is, what is the duty of a person who makes an excavation in the public highway, such as he may lawfully make for temporary purposes of building and the like \ The performance of the work necessarily renders the street unsafe for night travel. The danger arises from the nature of the improvement, and if it can be averted only by special precautions, such as placing guards or the lighting of the street, the corporation which has authorized the work is plainly bound to take these precautions. Storrs v. Utica, 17 N. Y. 104; Grant v. Brooklyn, 41 Barb. 381. Persons travel all hours of the night, and the obligation to warn travelers of the excavation, which they have authorized to be made, ought to continue all the time. It would seem that since persons are entitled to travel the streets of a city at all times, that it ought to be its duty to protect them at all times, while so doing, against damages arising from an unguarded excavation therein. But it , is unnecessary to pursue this line of thought further, since the rule of decision seems to be quite uniform, that it is sufficient to show that proper signals and' safe-guards were placed about an excavation on quitting work; and neither the corporation nor the contractor is liable if a wrongdoer removes the signals or barricades during the night. Dooly v. Town of Sullivan, 11 N. W. Rep. (Ind.) 816; Doherty v. Waltham, 4 Gray, 596; Mullen v. Rutland, 55 Vt. 77; Parker v. Cohoes, 10 Hun. 531; Sevester v. Mayor, 47 N. Y. 341; Schmeikhardt v. St. Louis, 2 Mo. App. 571; Binicker v. Railroad, 83 Mo. 660; Walthers v. Railroad, 78 Mo. [476]*476617. From the undisputed facts of the case, the inference cannot be drawn under the rule just referred to, that the defendant was guilty of no negligence. The law is, that when the evidence is conflicting upon a material issue in the case, that it is the province of the jury, and not the court, to pass upon it. King v. Railroad, 98 Mo. 235; Forster v. Mfg. Co., 98 Mo. 391.
It is, therefore, quite plain that, if the jury believed the evidence introduced by the plaintiff, that they might very well find for him, on the issue of negligence. In a case where the evidence was so conflicting, as in this, it would have been a usurpation by the court of the province of the jury, for it to have withdrawn the case from the consideration of the jury, by the giving of the defendant’s first instruction. It was a proper case for the jury.
II. No error is perceived in the action of the trial court in giving instruction number 6 of its own motion, and in refusing those numbered 4 and 6, asked by the defendant. This instruction, with others given by the court on its own motion, embody substantially the same theory as those refused for defendant. They all go to the very ultima thule of the principles of the rule invoked by the defendant and stated in the preceding paragraph of this opinion. The instructions of the court were extremely liberal as to defendant, and ought not to be made the subject of complaint by it. And all the instructions given, when taken in their entirety, very fairly and fully declared the law of the case, and in them we can discern no harmful error.
III. The defendant’s further contention is that the trial court erred in refusing to permit the witness Sapp to testify what he had told the plaintiff he had heard what others had said about his using his arm. Admissions may be implied from acquiescence of the party to what is said or done in his hearing. 1 Greenl. Ev., sec. 196; State v. Walker, 98 Mo. 106; State v. [477]*477Miller, 49 Mo. 505; Mix v. Osby, 62 Ill. 502. Now, in this case, the witness Sapp made a statement to plaintiff of the things he had heard, and to which statement plaintiff made no reply. But the difficulty here is that the record does not disclose what it was that the defendant proposed to prove by this witness, that he had stated to plaintiff that he had heard others say about his use of his arm. How could the trial court, or even this court, determine whether the implied admission of plaintiff was material, unless it had been disclosed what the nature of the statement, so admitted, was ? What did the plaintiff admit to be true 3 What did it tend to prove or disprove ? The statement made by the witness to plaintiff becomes the admission of the latter and whether these were material or not could not be determined in advance of any statement of the nature of the same to the court. If the defendant had stated to the court what it was it proposed to prove by the witness had been said to him by plaintiff, then the court could have intelligently determined whether the implied admission of the plaintiff was or was not material evidence. This case might be reversed on the bare refusal of the court to permit an answer to this question, and, on a retrial, it might appear that the matter elicited was wholly immaterial and incompetent. This ground of the defendant’s complaint must be held against it. Jackson v. Hardin, 83 Mo. 175; Ault Sav. Bank v. Ault, 80 Mo. 199; Kraxberger v. Roiter, 91 Mo. 404.
It results, from these considerations, that the judgment must be affirmed.