Page:Federal Reporter, 1st Series, Volume 3.djvu/88

 NUGENT V. WANN. SI �Bons by whom, it wàs used; ihe character of the way itself as to being well -worn by the passage of persons and vehicles, orotherwise; the character of the passage from the street into the alley, and whether the same was such as to indicate a purpose to open the passage for the use of the public ; and from ail the evidence, and not from anything outside of the evidence, you will determine whether the alley way was used by the public, and regarded by them and by plaintifif as open to their use. If you find that it was so opened and used, you will then inquire and decide whether the defendant, knowing that fact, dug in the alley a dangerous excavation or pit, which he knew,or had reasonable cause to believe, would endanger the safety of any person passing, and left it open and unguarded, giving no notice or warning of its presence ; and if this is found, from the evidence, to be true, you will then inquire and determine, from the evidence, whether the plain- tiff, in the performance of his duty as a peace officer, and passing over the way in the night-time, without negligence, or want of ordinary care on his part, fell into the excavation and was injured. The owner of land bas a right to use it as he pleases, so he does not thereby endanger the person or property of another. The defendant had a right to make the excavation in question for the purpose of preparing a recep- tacle for fuel, or for any lawful purpose, and he was under no obligations to warn any one of the danger of passing that way, unless the fact that the place where the excavation was made had been used, and was, at the time of making the the same, in use by the public as a passage way, and the defendant knew that fact. �From what I have said you will observe that you are to confine your inquiries to the foUowing questions : �1. Was the alley way used as a passage way by thia public at and before the time of the accident, and was the plaintiff aware of that fact ? �If you decide this question in the negative you will find for defendant, and no further consideration of the case ia neo- essary. �2. But if you find the question just stafeed in the affirma- v.3,no.2— 6 ����