1050. Nocturnal travel. 447 Highways are constructed and maintained for travel at all times. The duty is imposed, therefore, upon the public corporation of maintaining its highways in a reasonably safe and fit condition for travel by night as well as day and the nocturnal traveler may presume that the corporation has performed its duty in this respect for his benefit as a traveler by night.446 He is not, therefore, required to carry lights, for illustration, by means of which defects may be more readily discovered. The fact that he is traveling in the darkness, however, when defects are not so easily discovered, imposes upon him a greater degree of care than if he were traveling by day. The proper determination of whether he used ordinary care would include a consideration of the circumstance that he was traveling in the darkness. He is required to exercise greater vigilance and care in his use of the highway,448 as the ease with which defects may be discovered is affected by dark ness. § 1051. Attempting obvious or known danger. The character of a defect as a dangerous one may be open, notorious and obvious and well known. When of this nature, the traveler in the exercise of ordinary care must take into consideration this fact and if he is injured through an attempted use of a highway in a notoriously defective and dangerous condition, he is 446 City of Birmingham v. McCray, 84 Ala. 469, 4 So. 639; Seward v. City of Wilmington, 2 Marv. (Del.) 189, 42 Atl. 451; Keyes v. City of Cedar Falls, 107 Iowa, 509, 78 N. W. 227; Finn v. City of Adrian, 93 Mich. 504, 53 N. W. 614; May v. City of Anaconda, 26 Mont. 140, 66 Pac. 759; Village of Ponca v. Crawford, 23 Neb. 662, 37 N. W. 609; Chisholm v. State, 141 N. Y. 246, 36 N. E. 184; City of Scranton v. Gore, 124 Pa. 195, 17 Atl. 144. 447 Vance v. City of Franklin, 4 Ind. App. 515, 30 N. E. 149. But see Conrad v. Upper Augusta Tp., 200 Pa. 337, 49 Atl. 770; Kaseman v. Borough of Sunbury, 197 Pa. 162, 46 448 City of Columbus v. Griggs, 113 Ga. 597, 38 S. E. 953; Jackson County Com'rs v. Nichols, 139 Ind. 611, 38 N. E. 526; City of Bloomington v. Rogers, 13 Ind. App. 121, 41 N. E. 395; Stier v. City of Oskaloosa, 41 Iowa, 353; Graham v. Town of Oxford, 105 Iowa, 705, 75 N. W. 473; Titus v. Town of New Scotland, 90 Hun, 468, 35 N. Y. Supp. 971. But see Hanlon v. City of Keokuk, 7 Iowa, 488; Perry v. City of Cedar Falls, 87 Iowa, 315, 54 N. W. 225. Where it was held that a person was guilty of contributory negli chargeable with contributory negligence, though this principle as all others stated in respect to the subject of negligence is not invariably applied. The circumstances of a particular case may be such that upon a fair consideration of them the traveler in at gence in driving where it was so dark that he could not see. See, also, State v. Orr, 89 Iowa, 613. 449 District of Columbia v. Ashton, 14 App. D. C. 571; City of Birmingham v. Starr, 112 Ala. 98, 20 So. 424; Sheats v. City of Rome, 92 Ga. 535, 17 S. E. 922; City of Alton v. English, 69 Ill. App. 197; City of Chicago v. Richardson, 75 Ill. App. 198; Shampay v. City of Chicago, 76 Ill. App. 429; City of Quincy v. Barker, 81 Ill. 300; Hursen v. City of Chicago, 85 Ill. App. 298; City of Bloomington v. Rogers, 9 Ind. App. 230, 36 N. E. 439; City of Huntingburgh v. First, 15 Ind. App. 552, 43 N. E. 17; Rogers v. City of Bloomintgon, 22 Ind. App. 601, 52 N. E. 242; City of Evansville v. Christy, 29 Ind. App. 44, 63 N. E. 867; Morrison v. Shelby County Com'rs, 116 Ind. 431, 19 N. E. 316; Alline v. City of Le Mars, 71 Iowa, 654, 33 N. W. 160; Weirs v. Jones County, 86 Iowa, 625, 53 N. W. 321, 17 L. R. A. 445. Inability to read a warning sign is no excuse. Barce v. City of Shenandoah, 106 Iowa, 426, 76 N. W. 747; Rusch v. City of Dubuque, 116 Iowa, 402, 90 N. W. 80. A projecting spike is not such an obvious defect in a sidewalk as to charge a pedestrian with notice thereof as a matter of law. Lane v. City of Lewiston, 91 Me. 292, 39 Atl. 999; Tasker v. Inhabitants of Farmingdale, 91 Me. 521, 40 Atl. 544, Id., 88 Me. 103, 33 Atl. 785; Wilson v. City of Charlestown, 90 Mass. (8 Allen) 137; Shepardson v. Inhabitants of Colerain, 54 Mass. (13 Metc.) 55. Kelley v. City of Boston, 80 Mass. 233, 62 N. E. 259. No recovery can be had for injuries sustained by one descending into an uncovered catch basin to rescue a child who had fallen in. Wakeham v. St. Clair Tp., 91 Mich. 15, 51 N. W. 696; Smith v. City of Jackson, 106 Mich. 136, 63 N. W. 982; Black v. City of Manistee, 107 Mich. 60, 64 N. W. 868; Friday v. City of Moorhead, 84 Minn. 273, 87 N. W. 780; Cohea v. City of Coffeyville, 69 Miss. 561, 13 So. 668; Cohn v. Kansas City, 108 Mo. 387, 18 S. W. 973; Womach v. City of St. Joseph, 168 Mo. 236, 67 S. W. 588; Caven v. City of Troy, 32 App. Div. 154, 52 N. Y. Supp. 804; Spencer v. Town of Sardinia, 42 App. Div. 472, 59 N. Y. Supp. 412; Williams v. Village of Port Leyden, 62 App. Div. 490, 70 N. Y. Supp. 1100; Kleng v. City of Buffalo, 156 N. Y. 700, 51 N. E. 1091; Village of Conneaut v. Naef, 54 Ohio St. 529, 44 N. E. 236; Forker v. Borough of Sandy Lake, 130 Pa. 123, 18 Atl. 609; Hill v. Tionesta Tp., 146 Pa. 11, 23 Atl. 204; Winner v. Oakland Tp., 158 Pa. 405, 27 Atl. 1110, 1111; Auberle v. City of MeKeesport, 179 Pa. 321, 36 Atl. 212; Boyle v. Borough of Mahony City, 187 Pa. 1, 40 Atl. 1093; O'Neill v. Bates, 20 R. I. 793, 40 Atl. 236; Phillips v. Ritchie County Ct., 31 W. Va. 477, 7 S. E. 427; Hesser v. Grafton, 33 W. Va. 548, 11 S. E. 211; Hausmann v. City of Madison, 85 Wis. 187, 55 N. W. 167, 21 L. R. A. 263; Cooper v. Village of Waterloo, 98 Wis. 424, 74 N. W. 115; Devine tempting to pass an obvious defect or danger may not be chargeable with a lack of the ordinary care which the law imposes upon him. 450 Under no conditions, however, will a reckless disregard of one's safety be excused.451 § 1052. Choice between dangers or ways. It often happens that in the proper use of a highway by a traveler that condition arises which necessitates a choice between dangers or defects The highway may be defective in several ways. The traveler selects or chooses as between them in his use of the road and is injured when, if he had selected or chosen another mode or way of passing he might not have been injured. The rule in this class of cases seems substantially to be that if he exercises his best judgment and discretion under the circumstances, unless the danger which he attempted was so obvious and patent as to charge him with contributory negligence in attempting it, v. City of Fond du Lac, 113 Wis. 61, 88 N. W. 913; Maanum v. City of Madison, 104 Wis. 272, 80 N. W. 591; City of De Pere v. Hibbard, 104 Wis. 666, 80 N. W. 933. 450 District of Columbia v. Crumbaugh, 13 App. D. C. 553; Dempsey v. City of Rome, 94 Ga. 420, 20 S. E. 335; Hazard v. City of Council Bluffs, 87 Iowa, 51, 53 N. W. 1083; City of Ft. Scott v. Peck, 5 Kan. App. 593, 49 Pac. 111; City of Ottawa v. Black, 10 Kan. App. 439, 61 Pac. 985; Charles County Com'rs v. Mandanyohl, 93 Md. 150, 48 Atl. 1058; O'Neil v. Hanscom, 175 Mass. 313, 56 N. E. 587; Butman v. City of Newton, 179 Mass. 1, 60 N. E. 401; Perrette v. Kansas City, 162 Mo. 238, 62 S. W. 448; Kossman v. City of St. Louis, 153 Mo. 293, 54 S. W. 513; Dow v. Portsmouth, K. & Y. St. R. Co., 70 N. H. 410, 49 Atl. 570; Hawley v. City of Gloversville, 4 App. Div. 343, 38 N. Y. Supp. 647; Carroll v. Allen, 20 R. I. 144; Abb. Corp. Vol. III - 24. Whitty v. City of Oshkosh, 106 Wis. 87, 81 N. W. 992. 451 Wilkins v. City of Wilmington, 2 Marv. (Del.) 132, 42 Atl. 418; Pierce v. City of Wilmington, 2 Marv. (Del.) 306, 43 Atl. 162; Cooper v. Floyd County, 112 Ga. 70, 37 S. E. 91; City of Columbus v. Griggs, 113 Ga. 597, 38 S. E. 953; Massey v. City of Columbus, 75 Ga. 658; Town of Salem v. Walker, 16 Ind. App. 687, 46 N. E. 90; Town of Boswell v. Wakley, 149 Ind. 64, 48 N. E. 637; City of Henderson v. Burke, 19 Ky. L. R. 1781, 44 S. W. 422; Germaine v. City of Muskegon, 105 Mich. 213, 63 N. W. 78; Church v. Village of Howard City, 111 Mich. 298, 69 N. W. 651; Sindlinger v. Kansas City, 126 Mo. 315, 28 S. W. 857, 26 L. R. A. 723; Kane v. City of Yonkers, 169 N. Y. 392, 62 N. E.. 428; Magill v. Lancaster County, 39 S. C. 27, 17 S. E. 507; Laney v. Chesterfield County, 29 S. C. 140, 7 S. E. 56; Moore v. City of Richmond, 85 Va. 538, 8 S. E. 387. that he will not be regarded as exercising less than ordinary care in making his election.452, Choice of ways. Closely connected with the subject of the preceding paragraph is that of the selection of ways. Where a trav eler in passing chooses one which is unsafe when another was open, less defective in its character or practically safe, by taking the other or dangerous one, he assumes all the risks of that route and if injured, he is chargeable with contributory negligence and cannot recover,453 but this is ordinarily a question for the jury. § 1053. Condition of the traveler. The question of contributory negligence is also affected by or involves a discussion of the condition of the traveler either physi 452 Burr v, Town of Plymouth, 48 Conn. 460; City of East St. Louis v. Dougherty, 74 Ill. App. 490; Larrabee v. Sewall, 66 Me. 376; Burrows v. Village of Lake Crystal, 61 Minn. 357, 63 N. W. 745. ' 453 District of Columbia v. Brewer, 7 App. D. C. 113; Mosheuvel v. District of Columbia, 17 App. D. C. 401; City of Peoria v. Walker, 47 Ill. App. 182; Lovenguth v. City of Bloomington, 71 Ill. 238; Weinstein v. City of Terre Haute, 147 Ind. 556, 46 N. E. 1004; Hartman v. City of Muscatine, 70 Iowa, 511, 30 N. W. 859; Cosner v. City of Centerville, 90 Iowa, 33, 57 N. W. 636; Homan v. Franklin County, 90 Iowa, 185, 57 N. W. 703; Barnes v. Town of Marcus, 96 Iowa, 675, 65 N. W. 984; Sylvester v. Town of Casey, 110 Iowa, 256, 81 N. W. 455; Welsh v. Town of Argyle, 89 Wis. 649, 62 N. W. 517; Norwood v. City of Somerville, 159 Mass. 105, 33 N. E. 1108; Irion v. City of Saginaw, 120 Mich. 295, 79 N. W. 572; Howey v. Fisher, 122 Mich. 43, 80 N. W. 1004; Wright v. City of St. Cloud, 54 Minn. 94, 55 N. W. 819; Ray v. City of Poplar Bluff, 70 Mo. App. 252; Kleng v. City of Buffalo, 72 Hun, 541, 25 N. Y. Supp. 445; City of Dayton v. Taylor's Adm'r, 62 Ohio St. 11, 56 N. E. 480; Forks Tp. v. King, 84 Pa. 230; Wellman v. Borough of Susquehana Depot, 167 Pa. 239, 31 Atl. 566; Hopkins v. Town of Rush River, 70 Wis. 10, 34 N. W. 909, 35 N. W. 939. But see District of Columbia v. Moulton, 15 App. D. C. 363. A failure to anticipate a possible danger not contributory negligence. City of Decatur v. Stoops, 21 Ind. App. 397, 52 N. E. 623; Raynor v. City of Wymore, 3 Neb. Unoff. 51, 90 N. W. 759; Hamerlynck v. Banfield, 36 Or. 436, 59 Pac. 712. 454 Carstesen v. Town of Stratford, 67 Conn. 428, 35 Atl. 276; Nichols v. Town of Laurens, 96 Iowa, 388, 65 N. W. 335; Hoover v. Town of Mapleton, 110 Iowa, 571, 81 N. W. 776; Comiskie v. City of Ypsilanti, 116 Mich. 321, 74 N. W. 487; Taylor v. City of Mankato, 81 Minn. 276, 83 N. W. 1084; Graney v. City of St. Louis, 141 Mo. 80, 42 S. W. 941; Byrne v. City of Syracuse, 79 Hun, 555, 29 N. Y. Supp. 912; Ouverson v. City of Grafton, cal or mental. Public highways are constructed and maintained for the use, not only of the ablebodied, healthy and vigorous, but also for the infirm and the old and those with defective faculties, either natural or otherwise.455 The use of a highway by travelers who are defective in sight or hearing, who are physically crippled or mentally disabled or who are intoxicated, is not negligence per se, and if they are injured by reason of these defects, or any of them, they are not, for this reason alone, chargeable with contributory negligence.456 They are entitled to the use of the public ways and contributory negligence with respect to them can only be charged upon a failure on their part to use ordinary care which includes a consideration of their particular condition.457 A public 5 N. D. 281, 65 N. W. 676; Chilton v. City of Carbondale, 160 Pa. 463, 28 Atl. 833; Mellor v. Burgess of Bridgeport, 191 Pa. 562, 43 Atl. 365; Rowe v. City of Ballard, 19 Wash. 1. 52 Pac. 321. 455 Ham v. City of Lewiston, 94 Me. 265, 47 Atl. 548. See, also, cases cited generally under this section. 456 Scott v. City of New Orleans (C. C. A.) 75 Fed. 373. Question for jury. Homewood v. City of Hamilton, 1 Ont. Law Rep. 266; Yeager v. Town of Spirit Lake, 115 Iowa, 593, 88 N. W. 1095; Ott v. City of Buffalo, 131 N. Y. 594, 30 N. E. 67; Foy v. City of Winston, 126 N. C. 381, 35 S. E. 609. But see Enright v. City of Atlanta, 78 Ga. 288; Mareck v. City of Chicago, 89 Ill. App. 358; Woods v. Tipton County Com'rs, 128 Ind. 289, 27 N. E. 611. But driving when in an intoxicated condition constitutes contributory negligence. Fernbach v. City of Waterloo, 76 Iowa, 598, 41 N. W. 370; Monk v. Town of New Utrecht, 104 N. Y. 552, 11 N. E. 268. Intoxication. Lynch v. City of New York, 47 Hun (N. Y.) 524. But if intoxication contributes to the injury, the plaintiff cannot recover. Jaquish v. Town of Ithaca, 36 Wis. 108; McCracken v. Village of Markesan, 76 Wis. 499, 45 N. W. 323; Carpenter v. Town of Rolling, 107 Wis. 559, 83 N. W. 953. Intoxication. 457 Robinson v. Pioche, 5 Cal. 460 "A drunken man is as much entitled to a safe street as a sober one and much more in need of it." Garbanati v. Durango, 30 Colo. 358, 70 Pac. 686; Hoyt v. City of Danbury, 69 Conn. 341, 37 Atl. 1051; Samples v. City of Atlanta, 95 Ga. 110; Village of Noble v. Hanna, 74 Ill. App. 564; Smith v. City of Cairo, 48 Ill. App. 166; Ham v. City of Lewiston, 94 Me. 265; Ryerson v. Inhabitants of Abington, 102 Mass. 526; Gilbert v. City of Boston, 139 Mass. 313, 31 N. E. 734; Neff v. Inhabitants of Wellesey, 148 Mass. 487, 20 N. E. 111, 2 L. R. A. 500; Sias v. Village of Reed City, 103 Mich. 312; Lewis v. City of Independence, 54 Mo. App. 183; Taylor v. City of Springfield, 61 Mo. App. 263; Smart v. Kansas City, 91 Mo. App. 586; Davenport v. Ruckman, 37 N. Y. 568; Pitman v. City of El Reno, 2 Okl. 414; Foy v. City of Winston, 126 N. C. 381, 35 S. E. 609; |