Page:Federal Reporter, 1st Series, Volume 3.djvu/87

 '60 FEDERAL P.EPOBTEB. �ndjoining promises, and their tenants, customers and em- ployes, and not a public highway. �It follows from this that you must find for the defendant, unless you find, from tiie evidence, and in view of what I shall hereafter say, that the alley way was, with the assent of defendant, opened to and used by the public as a passage ■way. �A proprietor of land -who opens a private way upon his own premises is under no obligations to keep the same in repair for the safety of persons who may pass over it unin- vited; and even when such proprietor permits persons gener- erally to pass over such way he does not make himself liable for accidents or injuries which may resuit from the fact that the way is not a safe one, or not in repair. �The proprietor of such a way owes no duty to the public to keep it in repair for their use, and whoever uses it does so at his own risk, provided only that the proprietor, knowing that the public are in the habit of using the way, bas no right to place therein anything that he knows will endanger the safety of persons patsing over it, without giving warning of the danger. �If you find that the alley way in which the plaintiff was injured was a private one, and was not open to and used by the public, you will return a verdict for the defendant. It is claimed by the plaintiff that the alley way in question, though laid out as a private way, was in fact open to and used by the publie generally, and that it had been so used for sometime prior to the accident, and that plaintiff knew that fact, and that, therefore, it was not negligence in him to attempt to pass over it ; also that the defendant knew that the public were in the habit of passing that way, and that persons so passing would be in danger of falling into the ex- cavation. It is for you to decide, from the evidence, whether theB,e were facts. �In determining this question you will consider ail the facts and circumstances developed in the evidence. You will con- sider the purposes for which the way was opened; any evi- dence bef ore you as to the purposes for which, and the per- ����