plaintiff) was justified in thinking that it had been furnished by his employer, and for you to determine whether it had or had not been so furnished." The context may be found in the opinion by Mr. Justice VAN SYCKEL. It is said that, under this instruction, the jury might hold the defendant liable, although satisfied that it did not furnish the ladder, if they concluded that the plaintiff had reason to believe that the fact was otherwise. This does violence to the charge. The jury could not have understood that they were authorized to substitute the plaintiff's supposition for a fact. It is plain, I think, that the trial judge had in mind the leading case of Mills v. Ice Co., 51 N. J. Law, 342, 17 Atl. Rep. 695, decided by this court, and was applying to the facts the rule there declared. That was the case of a defective ladder in the hatch of a vessel. The plaintiff after safely using the ladder all the forenoon was hurt in the afternoon by a fall resulting from the breaking of a strip which had been insecurely nailed across the side bars of the ladder. He sued the owner of the vessel and was nonsuited because it was not directly shown that the defendant had provided the ladder for its workmen. The court unanimously set the judgment of nonsuit aside, with these words: "We think that the evidence established necessity for a ladder in the prosecution of the defendant's work, and the possession and control of the ladder referred to by the defendant, in a position where it could be and was used by the defendant's workmen, and hence made prima facie proof that the ladder was provided for the use of its workmen by the defendant.” The instruction under review harmonizes with this decision. It substantially told the jury that the history of the ladder and the uses to which it had been put were evidence upon the question whether the defendant furnished it. There is nothing in the case of Maher v. Thropp, to contradict this instruction, which is, indeed, only an application of the familiar rule of law and good sense that every person is chargeable with the inferences naturally arising from his own conduct.

I am authorized to say that DIXON, LIPPINCOTT, LUDLOW, BOGERT, and HENDRICKSON, JJ., concur in this opinion.

CUMMING v. T. A. GILLESPIE COMPANY.

Court of Errors and Appeals, New Jersey, November, 1898.

HIGHWAY - BICYCLIST RIDING INTO TRENCH GUARDED BY RED LIGHTS. 1. The questions of reasonable care on the part of the defendant, and that of contributory negligence on the part of the plaintiff, were submitted by the trial judge to the jury. Held, not erroneous, under the circumstances of the case.

2. The defendant, having dug a ditch across the highway, laid a temporary bridge over part of it on one side of the road, and at night put a red light at each side of the bridge. The plaintifi, approaching on a bicycle, thought that the red light indicated that the danger was between them, and, attempting to pass outside of them, fell into the trench. Held, that evidence produced by the plaintiff that it was the usual practice for persons placing obstructions in the highway to put a red light at each end of the obstruction was competent testimony.

MCGILL, Ch., and GARRISON, LIPPINCOTT, VAN SYCKEL and VREDENBURGH, JJ., dissenting.

(Syllabus by the Court.)

FROM a judgment of Circuit Court, Essex County, in favor of plaintiff, defendant brings error.

R. M. BOYD, JR., for plaintiff.

E. B. GOODELL, for defendant.

DIXON, J. On the evening of August 13, 1897, shortly before nine o'clock, the plaintiff, a young woman twenty-three years of age, was riding a bicycle on the road known as " Belleville Avenue," in Montclair. It was a moonlight night, but the road lay in the deep shadow of trees. The carriageway was forty feet broad, of which a width of about eighteen feet in the middle was macadamized. The plaintiff rode on the macadam, a little to the left of the center line, her companion being behind, at her right. When she came to a smooth piece of road having a descent of about four feet in a hundred, being an experienced rider, she coasted. Presently she saw, about 300 feet ahead, two red lights, one in the middle of the road, and the other a few feet to the right of it. Knowing that they indicated danger, she pressed her foot against the tire of her wheel as a brake, and checked her speed. After riding thus for something over 200 feet, discerning no obstruction on the left side of the road, and concluding that the danger was between the lights, she resumed. coasting, and almost immediately went into a trench at a point a little to the left of the center of the highway. The trench had been lawfully dug by the defendant company for the purpose of laying

a water pipe, and the dirt had been thrown out on the lower side. It extended entirely across the avenue, and over it, between the points marked by the lights, a temporary bridge for the passage of vehicles had been placed, but there was no other covering, barrier, or warning to secure the safety of travelers. The uncontradicted testimony was that, according to the customary mode of giving notice at night of obstructions in highways, two red lights in the road would indicate the extremities of the danger. On this state of facts, with evidence of some other circumstances favorable to the defendant which need not now be noticed, because they were in dispute, the plaintiff recovered damages for the injuries received by falling into the trench, and the defendant seeks to reverse the judgment.

There are three assignments of error, the first for the refusal of the trial court to nonsuit the plaintiff at the close of her case, the third for the refusal to direct a verdict for the defendant on the whole evidence, and the second for the admission of some testimony offered by the plaintiff. The first and third assignments may be considered together.

To support the claim for a nonsuit or a verdict, the defendant insists that the evidence failed, beyond controversy, to show negligence in the defendant, or established beyond dispute the contributory negligence of the plaintiff. We do not concur in either view. When the defendant had rendered one-half of the highway absolutely impassable for vehicles, its duty was to exercise reasonable care and prudence to notify travelers of that fact; and there is no rule of law which declares, nor must reason necessarily conclude, that this duty was fulfilled when, at night, two red lights were put at the extremities of that part of the road which was safe. It was for the jury to determine whether some further signal or barrier was not reasonably requisite to apprise travelers of the place of danger.

The question as to plaintiff's contributory negligence is a more serious one. It is plain that, by greater caution, she might have avoided the accident. Less speed, or a position upon the bicycle affording better facilities for stopping or dismounting, might have permitted her to save herself from harm. On the other hand, it is clear she was not utterly careless. She perceived the lights. She understood their general import, and pondered upon and tried to discover their special meaning in that situation. She thought she had done so, and her conclusion accorded with the customary significance of such signals. She was entitled to assume that the road was safe unless there was affirmative evidence of danger, and her deliberate judgment was that no such evidence appeared with respect

to the left half of the road. On that judgment she acted, and, had it been correct, she would have gone on in safety. She did not see the trench nor the pile of dirt beyond it. The deep shadow of the trees concealed them, and she did not learn of their presence until she fell, so that, even if she had been riding very slowly and with her feet upon the pedals, she might still have fallen.

Under these circumstances, on which tribunal, the judge or the jury, did the law cast the duty of determining whether the degree of care that she exercised was that of reasonable prudence or not? The law does not attempt to define the requirements of reasonable prudence for the great variety of circumstances presented in litigation and therefore in all cases it must be a question of fact whether reasonable prudence appears. The decision of such questions is generally committed to the jury, and only when reasonable minds cannot, in view of the evidence, differ upon the question, is the judge authorized to pronounce the decision. In the present case the trial judge held that there was room for such a difference, and submitted the matter to the jury, with appropriate instructions. We find ourselves unable to conclude that his opinion was erroneous in law. Our own differences admonish us that he was not wrong.

The remaining assignment of error is that the plaintiff was allowed to prove what was the usual practice with respect to placing lights as signals upon obstructions in public roads. We think this evidence was legally admitted. It bore upon the question of reasonable care in the defendant, not that compliance with the custom would necessarily exonerate, or noncompliance inculcate, the defendant, but that its conduct in that regard would be a material fact for the consideration of the jury. Likewise it was relevant in passing upon the plaintiff's behavior. If she had ascribed to the signals a meaning contrary to their usual significance, it might have argued less prudence in securing the elements of a reasonable judgment before determining upon her course. Although she did not distinctly swear that she knew the custom, yet her deciding according to it was some indication that she did know it, and so the custom became an important fact for her guidance.

We find no error in the record, and the judgment must be affirmed. MCGILL, Ch., and GARRISON, LIPPINCOTT, VAN SYCKEL, and VREDENBURGH. JJ., dissenting.

VOL. V-26

NEWARK ELECTRIC LIGHT AND POWER
COMPANY v. RUDDY.

Supreme Court, New Jersey, November, 1898.

BOY INJURED BY PICKING UP BROKEN ELECTRIC LIGHT WIRE FROM SIDEWALK-RES IPSA LOQUITUR. Proof that an electric light wire, controlled by a private corporation, and normally suspended upon poles along a public street, was trailing broken on the sidewalk, affords a presumption of negligence in a suit against such corporation by a person injured through electric shock by contact with such wire. Res ipsa loquitur" (1).

FROM a judgment of Circuit Court, Essex County, in favor of plaintiff, defendant brings error.

The plaintiff, a child of eight years, picked up from the sidewalk of a public street the end of a broken wire that trailed from one of