Barton

Action against a contractor for negligence in repairing a street; verdict and judgment for plaintiff for three hundred dollars; defendant appeals from the judgment without any bill of exceptions or statement.

It must be taken as established by the verdict that the allegations of the complaint are true. Therefore the fact must be taken to be that the defendant was a contractor “ to repair and replank East Street, in said city and county of San Francisco, state of California, from the intersection of Market Street with said East Street southerly to and beyond the intersection of Howard Street with said East Street”; that he entered upon the *266 performance of the work, and on the 20th of January, 1887, be “ was engaged in laying plank upon said East Street”; that on said day “and on East Street, he, the said defendant, carelessly and negligently left a space or hole uncovered, and carelessly and negligently left the same so open and uncovered, without any guard or other protection around the same, or notice to warn persons who might be traveling along or upon said East Street of danger, or that they were approaching danger as they came near or in proximity to said opening or hole,…

I believe the above conclusion is correct. But I think it is so notwithstanding the ordinance referred to in the opinion. The defendant wa.s guilty of negligence, independent of the ordinance and its provisions. His negligence was patent to every one, and was pronounced and clear though the ordinance,had never been passed.