McNeely

The defendant was employed by one Connell, the owner of a lot in the city of Los Angeles, to, make an excavation therein preliminary to the erection of a building. The lot was located at the north end of Santee Street. For a long time prior to the time when the exea vation was made there had been a roadway across this lot by which the public had commonly and usually traveled between Santee Street and other lands leading to Los Angeles Street. Of this the plaintiff and the defendant had full knowledge. The defendant at the time stated maintained said excavation and an incline running into the north end thereof, without any barriers, lights, or other warning to prevent persons from falling into said incline or excavation. On the night of April 15, 1917, the plaintiff, while traveling to his place of employment, and while attempting to pass from the north end of Santee Street across said lot, fell into the excavation and was injured thereby. He brought this action to recover damages for said injuries alleged to have been suffered by defendant’s negligence. The defendant, in addition to denying any negligence on his own part, pleaded the affirmative defense of contributory negligence…