Hayward

Plaintiffs obtained a verdict of two- thousand dollars for damages suffered by Emilie Hayward, the wife of her coplaintiff, when she fell into a ditch or trench excavated by the defendant in a, public street during the course of his construction of a sewer system under contract. Work under this contract covered a large area in the particular neighborhood in which the plaintiff lived and had been in course of construction for a period of some two and a half months prior to the date of the injury. On the night on which the injury occurred, the plaintiffs had been visiting a neighbor and on their return home over a path which they had frequently used the wife fell into- the trench and suffered the injuries which are the basis of the accident. Plaintiffs had a general verdict in the sum of two thousand dollars, and from the judgment upon the verdict this appeal is taken.

The only grounds urged upon the appeal are: (1) That the respondent Bmilie Hayward had knowledge or the means of knowledge of the existence of the danger, that she voluntarily assumed the risk, and was therefore guilty of contributory negligence as a matter -of law; (2) that the respondent Bmilie Hayward’s husband…