keep all of its streets in a reasonably safe condition throughout their entire width at all times and places and under all circumstances. Instructions should in all cases apply the law to the existing facts and circumstances, and in cases of negligence, where the duty varies with the conditions, a mere general statement of the law with regard to the duty generally imposed, is, if possible, worse than not to instruct at all. If it be the law that the duty of the city with respect to its streets is always and under all circumstances the same, then the instruction was proper enough. If, however, such is not the law, and the duty varies in accordance with conditions. and circumstances, then it may be that the city had discharged its full duty with respect to a given street, or a particular place in such street, although it did not comply with what is said in the instruction above quoted.

The gist of the action in question was negligence, and there could be no actionable negligence unless the city did or omitted to do something which, in the exercise of ordinary care and prudence, it should have done or omitted to do. The authorities with regard to the duty imposed by law upon municipalities in opening, improving, and maintaining the streets in a reasonably safe condition for travel throughout their entire width are not in perfect harmony. In 15 A. & E. Eney. L. (2d. Ed.) at page 452, after stating the law applicable to country roads to be that such roads need not be opened up nor maintained in a reasonably safe condition for travel throughout their entire width, the author proceeds as follows:

"In regard to city streets it would seem that the rule might well be different from that prevailing in the case of country roads, and accordingly it is stated in some cases that there is an absolute duty to keep in repair the whole width of the street. These statements may, however, be viewed with reference to the particular circumstances under which they are made, and in the best-considered cases it is stated that even in the case of city streets the width which must be kept in repair is a matter dependent on particular circumstances, among which, apparently to be considered, are the amount of travel and the question whether the city has ever opened the whole street for travel by doing work thereon, so as to induce persons to use the whole width thereof."

Upon an examination of the cases it will be found that what the author says with regard to the statements contained in the cases, and that such statements must be reconciled with the particular facts before the courts in making them, is not overdrawn. In fact it will be found that cases emanating from the same courts are not infrequently cited upon both sides of the proposition; namely, that it is the duty of the city to make its streets passable and to maintain them in a reasonably safe condition throughout their entire width, and also that no such duty is imposed. This apparent conflict is due to the fact that in those cases where the evidence was to the effect that the city had opened, worked, and prepared for travel and public use the whole width of the street the court simply stated that it was the duty of the city to maintain such streets reasonably safe for travel throughout their entire width, and that a failure to do this constituted negligence. In those cases, therefore, the question involved here, as a general rule, is not discussed; but the duty upon the part of the city to maintain the whole street safe is assumed.

There are also numerous cases where defects of sidewalks only were in question, and in most of those cases, in speaking of sidewalks as parts of the streets, it is also asserted that the whole width of the sidewalk-sometimes the expression "streets" is used-must be maintained in a reasonably safe condition for travel whether in daytime or in nighttime. Judge Dillon, in his excellent work on Municipal Corporations, in speaking upon this question, says:

"Nor, as already incidentally stated, is a municipal corporation bound to keep all of its streets and all parts of the street in good repair. When it opens a street and invites public travel, it must be made reasonably safe for such use; but this does not necessarily imply as a matter of law that the whole width of the street must be in good condition. Whether the street was wide enough to be safe, whether it was in a reasonably safe condition for public use by travelers who use ordinary care to avoid injury, are almost always questions for the jury." (2 Dill. Mun. Corps. [4th Ed.], sec. 1016.)

In McArthur v. Saginaw, 58 Mich. 357, 25 N. W. 313, 55 Am. Rep. 687, the Supreme Court of Michigan, in pas

sing upon an instruction somewhat similar in its terms to the one above set forth, use the following language:

"The jury undoubtedly understood from the rulings of the court and the questions laid before them that it was for them to decide how much of the streets should be kept in condition for general travel, and they found that the entire street ought to be clear of obstructions, and it must be presumed they based their verdict for plaintiff on that idea. This was a palpable error, for there can be no doubt of the right of every city to determine what part of the nominal highway shall be devoted to the various purposes of passage, and upon such a subject the municipal discretion must prevail."

In the foregoing case it appeared that the actual width of the street as platted and surveyed was sixty-six feet, while the part that was worked and made passable was but thirtyone feet. The injury resulted by coming in contact with an obstruction which was outside of the thirty-one feet, but within the exterior boundaries of the street, and which was placed there by an abutting owner, apparently with the consent of the city. In Perkins v. Fayette, 68 Me. 152, 28 Am. Rep. 84, it is said:

"The judge instructed the jury that towns were not required to render the road passable for the entire width of the whole located limits, and that the duty of the town was accomplished by making a sufficient width of the road in a smooth condition so that it would be safe and convenient for travelers."

This the Supreme Court of Maine held to be a correct statement of the law, and it was commented on and followed in Morse v. Belfast, 77 Me. 44, and in subsequent cases by that court. In City of Wellington v. Gregson, 31 Kan. 102, 1 Pac. 255, 47 Am. Rep. 482, Mr. Justice Brewer, in speaking of the duty imposed by law upon cities in respect to the maintenance of their streets, says:

In other

"In the discharge of this duty, in places it must keep the whole width of the street in a safe condition for travel. places it is sufficient if it keep a traveled track in good repair."

In Bassett v. City of St. Joseph, 53 Mo., at page 303, 14 Am. Rep. 446, the Supreme Court of Missouri, in speaking

of the duties imposed on cities in this regard, say that the city

"Is only bound to keep such streets and such parts of streets in repair as are necessary for the convenience and use of the traveling public. It may be, and doubtless is, the case that there are streets or parts of streets in many cities which are not at present necessary for the convenience of the public that will be brought into use by the growth of the city, or there may be streets that have more width than is necessary for the present use or the requirements of travel."

A much more recent case from the Supreme Court of Missouri we think, not only states a practical, but, as we conceive, the true, rule to be, that, if the city opens and undertakes to put the whole width of the street in condition for travel and invites the public to use the whole width, then it is the duty of the city to exercise ordinary care so as to maintain the whole width of such a street in a condition reasonably safe. If, however, the city works only a part of the street and puts it into condition for travel, then it is required to maintain only that part in a reasonably safe condition, and whether the part that is opened and worked is reasonably sufficient for public convenience may be a question of fact. (Kossman v. St. Louis, 153 Mo. 299, 54 S. W. 513.) In Kelley v. Fond du Lac, 31 Wis. 179, it is said:

"Towns are not bound to keep highways in a suitable condition for travel in their whole width; and their liability is limited primarily to damages caused by defects in the traveled track."

This case is approved and followed in the later Wisconsin cases, and especially in the case of Rhyner v. City of Menasha, 97 Wis. 523, 73 N. W. 41. In Fulliam v. City of Muscatine, 70 Iowa 438, 30 N. W. 862, the Supreme Court of Iowa, in sustaining the trial court in its refusal to give an instruction wherein the jury were told that it was the duty of the city to maintain the entire width of a street in a reasonably safe condition, say:

"We are not prepared to say that it is the duty of a city to keep every street safe for travel throughout its entire width, regardless of its location, amount of travel, and all other circumstances."

We refer to this case for the special reason that the Iowa court is sometimes cited as holding to the contrary doctrine; namely, that the entire width of the street must be maintained in a reasonably safe condition. Where such expressions are found in the cases from the Iowa court the facts were such as required the whole width of the street to be kept in safe condition. The following cases make this clear, namely: Crystal v. Des Moines, 65 Iowa 502, 22 N. W. 646; Stafford v. City of Oskaloosa, 64 Iowa 251, 20 N. W. 174. In a very recent case (1907) decided by the Appellate Court of Indiana, in speaking upon this subject it is said:

"A municipal corporation is bound to keep its streets and sidewalks reasonably safe and convenient for public travel either by day or by night; but when the municipality has prepared and maintained a way of sufficient width, smooth and convenient for travel, its duty in this respect has been accomplished."

It is not necessary to quote further from the decided cases, and from among the numerous cases that might be cited we shall refer only to the following: City of Austin v. Ritz, 72 Tex. 401, 9 S. W. 884; Goeltz v. Town of Ashland, 75 Wis. 642, 44 N. W. 770; Marshall v. Ipswich, 110 Mass. 522; City of Hannibal v. Campbell, 86 Fed. 298, 30 C. C. A. 63; Tasker v. Farmingdale, 85 Me. 525, 27 Atl. 464; Craig r. City of Sedalia, 63 Mo. 417; City of Guthrie v. Swan, 3 Okl. 116, 41 Pac. 84.

The general doctrine that may be deduced from the cases that have considered and passed upon facts such as those in the case at bar may be stated as follows: That in opening

a street for travel, whatever may be its nominal or platted width, it is primarily a matter within the discretion of the city to say whether it will prepare the whole or only a portion of the width of the street for travel; that in the business. portions of the city, or where travel and the convenience of the public require it, the whole width of the street must generally be made and maintained passable and in a reasonably safe condition; that where the whole width of the street has been prepared and opened for travel, whether primarily necessary or not, the city must thereafter maintain the whole