the issues, said to the jury: "The acts which the plaintiff says constitute the negligence on which he claims and upon which he predicates his right to recovery are that (1) The defendant was negligent in that it failed to erect an ample and sufficient barrier at said place in order that pedestrians might be turned from the path usually trod by them; (2) the defendant was negligent in that it failed by any device or method to warn the public generally and this plaintiff in particular of the danger incident to the operation of the said machine at said place; (3) the defendant was negligent in that it failed to erect and maintain a guard around the said place where the said machine was being operated sufficient to prevent the public in general or this plaintiff in particular from going into a place where he would be injured by the operation of the said machine; (4) the defendant was negligent in failing to warn the plaintiff of its purpose to lower the said lift or elevator as the plaintiff was passing in close proximity thereto."

This is said by counsel for appellant to be equivalent to instructing the jury that defendant was bound to put up a barrier which was impassable. It is further objected that the statements in the second, third, and fourth subdivisions of the paragraph are capable of being understood by the jury as charging the defendant with the duty not only to erect a suitable barrier, but also to warn the public generally and the plaintiff in particular of the danger there existing, as well as to give him notice when the elevator was to be lowered, and that such duties were incumbent upon defendant even though plaintiff knew, or as a reasonable man ought to have known, of the danger to be countered in using the path.

Appeal

instruction

stating issue

error.

These criticisms, we think, are not justified. The statement of the acts and

omissions which plaintiff charges as

negligence are quoted literally by the court from the plaintiff's petition. In so doing, we think that the court rightfully allowed the plaintiff to state in his own language the very grounds upon which he seeks to recover. The fact that, with the linguistic exuberance of the profession, counsel for plaintiff state and restate their alleged cause of action in varied forms, cannot serve to prejudice the defense where the court clearly states the pertinent rules of law and directs the attention of the jury to the essential issues, in which respect the defendant here has no just ground of complaint. The jury was told that defendant was rightfully in the street, that it was bound to no more than ordinary care in the conduct of its work therein. An "ample and sufficient barrier" could not mean more to any ordinarily intelligent juror than a barrier reasonably sufficient to indicate to the mind of the traveler passing that way that the path was closed to public use. Nor is there anything in the other specifications of negligence or in the instructions with reference thereto to suggest to the jury that, if defendant had performed its full duty with reference to a barrier, it could still be held negligent in not giving, in addition thereto, a public or an individual warning of the danger. It is probably true that no instruction or charge to a jury has ever been drawn with such perfect clearness and precision that an ingenious lawyer, in the seclusion and quiet of his office, with a dictionary at his elbow, cannot extract therefrom some legal heresy of more or less startling character. The real test of the meaning and effect of an instruction for the purpose of review by an appellate court ought to be, and we think is, the idea which the language objected to is fairly calculated to convey to the minds of jurors drawn from the ordinary walks of life; and the fact that, upon a minute, technical, or hypercritical analysis, some other interpretation can be placed thereon,

the driver of an automobile who is injured in attempting to pass around the barricade, by the act of a stranger in leaving an obstruction in the bypath so that vehicles traveling in opposite directions cannot pass each other, combined with the negligence of one who drives an automobile from the opposite direction at a reckless speed into the passageway.

- duty to anticipate obstruction. 7. A contractor for street improvements who leaves a passageway around his work sufficient for vehicles traveling in opposite directions to pass each other is not bound to anticipate that a stranger will leave an obstruction in the passageway in the night which will prevent such passing and cause injury.

Where a contract is made by a public corporation for the construction of a public work, and incidentally contains stipulations intended for the safety of the public, an individual who sustains personal injuries by reason of the nonperformance of such stipulation does not bear such a relation to the contractor as will support an action of tort against the latter, based upon the mere violation of the contractual duty.

Styles v. F. R. Long Co. 67 N. J. L. 413, 51 Atl. 710; Pittsfield Cottonwear Mfg. Co. v. Pittsfield Shoe Co. 71 N. H, 522, 60 L.R.A. 116, 53 Atl. 810, 13 Am. Neg. Rep. 363; Solberg v. Schlosser, 20 N. D. 307, 30 L.R.A. (N.S.) 1111, 127 N. W. 91; Ockerman v. Woodward, 165 Ky. 752, L.R.A.1916A, 1005, 178 S. W. 1100; Schneider v. Cahill, Ky.

27 L.R.A. (N.S.) 1009, 127 S. W. 143; Larned v. Holt & Jeffery, 74 Wash. 274, 46 L.R.A. (N.S.) 635, 133 Pac. 460; Davis v. Clinton Waterworks Co. 54 Iowa, 59, 37 Am. Rep. 185, 6 N. W. 126; Nickerson v. Bridgeport Hydraulic Co. 46 Conn. 24, 33 Am. Rep. 1.

If evidence of other accidents is admissible, the conditions must be shown to have been similar to those in question before any evidence of prior accidents can be received, and evidence of accidents subsequent to the injury is not admissible and it is error to receive evidence of such accidents.

Brady v. Manhattan R. Co. 127 N. Y. 46, 27 N. E. 368, 5 Am. Neg. Cas. 346; Abbotts, Proof of Fact, 3d ed. p. 311;

Chamberlayne, Ev. § 1012; Jones, Ev. 2d ed. § 163; Dillingham v. Whitaker, Tex. Civ. App. 25 S. W. 723; Matthews v. Missouri P. R. Co. 142 Mo. 645, 44 S. W. 802, 3 Am. Neg. Rep. 699; Hunt v. Dubuque, 96 Iowa, 314, 65 N. W. 319; Schmidt v. Coney Island & B. R. Co. 26 App. Div. 391, 49 N. Y. Supp. 777; Menominee River Sash & Door Co. v. Milwaukee & N. R. Co. 91 Wis. 447, 65 N. W. 176; Louisville & N. R. Co. v. Malone, 109 Ala. 509, 20 So. 33; Sullivan v. Salt Lake City, 13 Utah, 125, 44 Pac. 1039; Snowden v. Pleasant Valley Coal Co. 16 Utah, 369, 52 Pac. 599; People v. Rodawald, 177 N. Y. 408, 70 N. E. 1; Hill v, American Surety Co. 107 Wis. 19, 81 N. W. 1024, 82 N. W. 691.

Messrs. Dey, Hoppaugh, & Fabian, for respondent:

Mellen having failed to give the warnings required by his contract with the state, and having failed to keep one side of the street open for travel, plaintiff is entitled to recover for the breach of the obligation Mellen assumed in entering into that contract.

Brooklyn v. Brooklyn City R. Co. 47 N. Y. 475, 7 Am. Rep. 469; 36 Cyc. 881; Pittsfield Cottonwear Mfg. Co. v. Pittsfield Shoe Co. 71 N. H. 522, 60 L.R.A. 116, 53 Atl. 807, 13 Am. Neg. Rep. 363; Lyme Regis v. Henley, 3 Barn. & Ad. 77, 110 Eng. Reprint, 29, 5 Bing. 91, 130 Eng. Reprint, 995; Jenfree v. Metropolitan Street R. Co. 86 Kan. 479, 39 L.R.A. (N.S.) 1112, 121 Pac. 510, Ann. Cas. 1913C, 214; Montgomery Street R. Co. v. Smith, 146 Ala. 316, 39 So. 757.

Defendant was liable for negligence, irrespective of contract.

13 R. C. L. 317; Lyme Regis v. Henley, 3 Barn. & Ad. 77, 110 Eng. Reprint, 29, 5 Bing. 91, 130 Eng. Reprint, 995; Wade v. Gray, 104 Miss. 151, 43 L.R.A. (N.S.) 1046, 61 So. 168; Solberg v. Schlosser, 20 N. D. 307, 30 L.R.A. (N.S.) 1111, 127 N. W. 91; Nye v. Dibley, 88 Minn. 465, 93 N. W. 524; Robinson v. Chamberlain, 34 N. Y. 389, 90 Am. Dec. 713; Brooklyn v. Brooklyn City R. Co. 47 N. Y. 475, 7 Am. Rep. 469; Little v. Banks, 85 N. Y. 258; Young v. Waters-Pierce Oil Co. 185 Mo. 634, 84 S. W. 929; Ft. Wayne v. Hamilton, 132 Ind. 487, 32 Am. St. Rep. 263, 32 N. E. 324; Stack v. East St. Louis, 85 Ill. 377, 28 Am. Rep. 619; Inman v. Tripp, 11 R. I. 520, 23 Am. Rep. 520; Sanitary Dist. v. Ray, 199 Ill. 63, 93 Am. St. Rep. 102, 64 N. E. 1048; Perry v. Worcester, 6 Gray, 544, 66 Am. Dec. 431; Thurston v. St. Joseph, 51 Mo. 510, 11 Am. Rep. 463; Wegmann v. Jefferson, 61 Mo. 55; McGregor v. Boyle, 34 Iowa, 268; Shaw v. Crocker, 42 Cal. 435; Kimball v. Bath, 38 Me. 219, 61 Am. Dec. 243; Bailey v. Osborn, 80 N. J. L. 333, 78 Atl. 9, Ann. Cas. 1912A, 454.

It is not necessary that Mellen's negligence should have been the sole cause of the injury. If it were a proximate cause, then he is liable, although the negligent act of another was a concurring cause.

29 Cyc. 496.

It was not error to permit witnesses to testify as to other accidents that had occurred during the time appellant was making street improvements.

Gale v. Shillock, 4 Dak. 182, 29 N. W. 661; Benecke v. Welch, 168 Mo. 267, 67 S. W. 604; State v. Eifert, 102 Iowa, 188, 38 L.R.A. 485, 63 Am. St. Rep. 433, 65 N. W. 309, 71 N. W. 248; Lloyd v. Simons, 90 Minn. 237, 95 N. W. 903; Ward v. Abbott, 14 Me. 275; Tatom v. White, 95 N. C. 453; Chicago, K. & N. R. Co. v. Wiebe, 25 Neb. 542, 41 N. W. 297; Chesapeake, & O. R. Co. v. Barger, 112 Va. 688, 72 S. E. 963.

Corfman, Ch. J., delivered the opinion of the court:

Plaintiff brought this action in the district court of Salt Lake county to recover damages alleged to have been sustained by him

through the negligence of the defendants while he was driving his automobile on State street, a public highway leading from the south into Salt Lake City. At the trial plaintiff dismissed his action as to the defendants constituting the partnership Salt Lake Transfer Company, and then proceeded against Mellen alone, whom we shall hereinafter refer to as defendant.

Mellen was a contractor engaged by the State Road Commission, hereinafter referred to as the Commission, to lay cement pavement for the surfacing of certain portions of State street between Salt Lake City and Murray. He was required, under his contract with the Commission, to do the paving in sections. He had finished the pavement at or near the intersection of Twentyfirst South street with State street, when it was found that a water pipe or conduit crossing State street at that point was of insufficient size, and that it would be necessary to take it up and replace it with a larger one in order to carry the water. He was requested by the Commission to make the change after the completion of the pavement, as before stated, and was engaged in so doing when the accident occurred of which plaintiff complains. While proceeding to the work of taking up the pipe and replacing it, certain barricades were placed by Mellen across State street, to warn the public of the excavations made in the street, and to prevent vehicle travel over the green cement used in re-. pairing the pavement where the pipe was being replaced. Twenty-. first South street is 66 feet wide. State street is 132 feet in width, and is traversed through or near the center by a double-track street railway line. The pavement had been laid on both sides of the street railway lines. To better illustrate the condition on State street at the time and at the place of the accident, we

The two sets of parallel lines represent the street car tracks near the center of State street. The space between tracks is 6 feet, 8 inches wide. The heavily shaded spaces indicate paved portion of street, 16 feet in width on either side within 2 feet of street car line. The lines extending at right angles with the paved portions of the street represent wooden barriers approximately 3 feet in height, entirely closing State street to the west of car tracks, and partially to the east, for a distance north and south between barriers. The two small circles represent telephone poles. Attached to the ends of the wooden barricades, and passing around and nailed to the poles, as indicated by irregular line, was a wire mesh 42 inches high, containing 12 longitudinal wires with numerous cross wires. The light dotted space indicates the passageway or detour around the barricaded section of the

street taken by vehicles leaving and returning to the pavement, covering. a distance of about 80 feet. The two parallelograms marked "W" indicate two wagons attached together and heavily loaded with flat steel, standing within the traveled detour. Both were platform wagons. The north wagon had an elevated seat. The effect of the barricades was to direct all travel from the west side to the east side of the street, and to pass vehicles over and through the open passageway or detour, about 31 feet in width. The heavy line marked "BB," to the east of property line, represents a billboard, while parallelogram "C" represents a cottage. There were telephone poles along the east side of State street not shown on the plat.

In preparing the foregoing plat we were unfortunately deprived of the benefit of the exhibits used at the trial of the case, which should have accompanied, but are missing from the files and record on appeal. It is not claimed to be a detailed representation of all the conditions. surrounding the accident, and it may not be in all respects accurate. However, we think it fairly illustrates the conditions and reflects the testimony of witnesses who saw them at or about the date of the accident.

It is alleged in the complaint in substance:

That the work was being done by the defendant J. W. Mellen under the authority, direction, and supervision of the State Road Commission of the State of Utah; that reasonable care and prudence were required of the defendant J. W. Mellen in doing said work, and the said Commission exacted from him in the performance thereof that he should erect good and sufficient guards, barricades, and signals and so perform the work as not to close the entire road, but should provide an open unobstructed passageway sufficient to accommodate and provide for the traffic and travel thereon in both directions, all of which the defendant Mellen failed to do;