on its streets. It owes the public only the duty of reasonable diligence to keep its streets in such condition that the public, by exercising like diligence, may use them for all lawful purposes with reasonable security. A failure to perform this duty will render a municipality liable for the damage occasioned thereby.

For an injury occurring to any person from the apparent neglect of the municipality to keep its streets in repair, two defenses are open, which are generally recognized as sufficient: (1) That the city had no notice, actual or implied, of the existing defect; (2) the lack of any corporate fund and of any power to obtain one applicable to repairs has also been recognized as a good defense.

What is reasonable care is a question of fact depending upon the circumstances of each particular case. The degree of repair of a street is a matter of municipal discretion. The standard of repair may well be different in various localities. But it has been held that the municipality must use such care as will protect not only the busy traveler and pedestrian, but also the playing child and even the idle loafer.70 98. Obstructions.-Reasonable care of the streets also requires of the municipality the removal from them of unlawful obstructions and the signaling of dangerous ones.

70 City of Waverly v. Reesor, 93 Ill. App. 649; City of Omaha v. Richards, 49 Neb. 244, 68 N. W. 528 (where the city of Omaha was held liable for the death of a boy who fell through a section of a sidewalk which he was using as a raft on a pond of water that had accumulated over a street and adjacent private property because of the city's negligence in constructing a storm sewer).

The temporary and partial obstruction of a street may be permitted by the city when necessary for building, removing, improving, or commerce; but such work must obviously be performed with dispatch and care, and municipal consent must be obtained for the obstruction. Whenever and wherever it is permitted, it is a municipal duty to give reasonable warning to the public, both day and night, of the presence of danger, to the end that it may be avoided. Hitching posts, electric poles, stepping stones, and hydrants are not regarded as unlawful obstructions when placed at the curbstone or margin of the street, so as not to render the way unsafe; but such things placed either with or without municipal consent within the portion of the street commonly used either for riding, driving, or walking, and not properly guarded or signaled, will give action against the municipality to one injured thereby. Recoveries against a municipality have also been sustained because of its failure to remove or properly signal as obstructions to the street an ash pile, a motor, a steam roller, machinery, a furnace, a tent, building material, a hydrant, logs, rocks and stones, and also dangerous holes and excavations in or near the street, and objects naturally tending to frighten horses ordinarily gentle."1

99. Sidewalks.-Sidewalks under municipal control are objects of the same reasonable municipal care as other parts of the street, and an action will

71 Even where a horse of ordinary gentleness merely shies, so that the driver does not lose control of him, but is injured by coming in contact with an obstruction in the street, the city is liable; Burnes v. St. Joseph, 91 Mo. App. 489.

lie for injuries resulting from nonfeasance or misfeasance of this municipal duty. It is immaterial whether the municipality has built the sidewalk. Being a part of the street, it is under municipal control, and the corporation will be liable for neglecting to exercise ordinary care to keep it reasonably safe. The duty is an active one, beginning with the construction of the walk and continuing thenceforth as long as it remains under municipal control. If it be the duty of the abutter to make repairs, the municipality is not relieved from liability by notice given to the abutter. The walk must be made safe within a reasonable time, or the municipality will be liable for damages occurring from its being out of repair.

Hatchways and similar entrances from sidewalks to cellars are necessities in urban life, but the city must take care that such things do not become dangerous to pedestrians. If basement steps are necessary and permitted in a sidewalk, they must be guarded with suitable railing; and the doors or lids of hatchways or coal chutes must be safe and strong so as to protect pedestrians from danger. The municipal duty of reasonable care applies equally to objects above the sidewalk, such as signboards, poles, and awnings.

Ice and snow. The presence of ice and snow upon streets and sidewalks requires only reasonable care. Statutes have been passed in the New England States prescribing the measure of municipal duty; but such statutes, of course, are of local application only, and are not enacted in the Southern States. The only rule of general application, therefore, must be that

of reasonable care in view of climatic and other conditions.72

100. Bridges and viaducts.-All viaducts and bridges within a municipality are parts of streets, and objects of the same degree of municipal care. Unless required by mandatory statute, the construction of a bridge by a municipality is within its discretion; and, the location of a bridge being a governmental function, the municipality is not liable at common law for injury resulting therefrom. A municipal corporation is not liable for injuries resulting from the negligence or erroneous judgment of its officers or agents in the performance of, or omission to perform, duties which are purely discretionary,73 such as opening or closing a street, changing a grade, locating a crossing, or even suspending a general regulation for the temporary convenience or pleasure of a portion of its people.

But after the discretionary function of location has been performed and the municipality enters upon the business of construction, it enters the field of ministerial functions, and may become liable for failure to exercise reasonable care to place proper guards and railings around the bridge approaches during the construction, and also on the approaches and bridge itself after it is completed, so as to protect persons upon the bridge exercising ordinary care. It must use due care to erect and maintain a reasonably safe structure, and generally is liable for failure to per

72 Mauch Chunk v. Kline, 100 Pa. 119, 45 Am.. Rep. 364.

73 Howsmon v. Trenton Water Co., 119 Mo. 304, 24 S. W. 784, 23 L. R. A. 146, 41 Am. St. Rep. 654.

form, or for negligent performance of, its duty in. regard to bridges, under the same rules as are applicable to streets. This includes the duty of reasonable inspection and notice of danger; and for failure to exercise these duties municipalities have been held liable for defect in the floor, in the railings of a bridge, and for failure to close or warn the public of a dangerous bridge.

101. Drains and sewers.-A municipality may also be liable for misfeasance or nonfeasance in the performance of its duty to exercise reasonable care in the construction and maintenance of its drains and sewers. It is well settled that in deciding to build sewers and in choosing a plan the municipality is exercising governmental discretion, and therefore incurs no liability for the negligence or mistakes of its agents; but a municipality is liable for damages resulting from its neglect to discharge properly its ministerial duty to exercise reasonable care in the construction and maintenance of its sewers. Even the New England States, and others, denying municipal liability for defective streets, generally recognize and enforce this rule with regard to sewers. The true ground of responsibility for negligence in the care of sewers seems to be the same as in the care of highways, namely, the corporation has neglected its municipal duty to exercise reasonable diligence in the care and management of property under its control. Municipal ownership is not essential to liability; municipal control will be sufficient. And it has been held that when a sewer runs partly through private and partly through municipal