Stainback v. City of Meridian

delivered the opinion of the court on the second appeal.

Without detailed analysis of the instructions, we feel constrained to say that, on the evidence in this case, the verdict should have been for the defendant. The basis of appellee’s claim was that the planks had been put there as and for a passageway for pedestrians. There is no proof to support this allegation. It is clearly shown that barricades were put across the street to warn the public of the danger of crossing, and that these planks were put across for the convenience of the city employees in hauling rocks across the ditch. It would seem that the school children — one of whom says it was very dangerous to cross — went in between the barricades and the ditch, and thus across on, the planks. If one chose, in spite of *452the barricades and the warning they spoke, to take the risk of crossing, the city cannot be held for the consequences of such rashness. The reasoning that, though the city did not originally lay the planks down as a crossing for pedestrians, yet if persons wrongfully crossed on them, and the city knew of this wrongful crossing, and its constant repetition, and did not object, it is bound, is not sound. Eepetition of an unlawful act, resulting in damage, cannot confer a right of action because of such damage. Besides, that is not the case made by the declaration. Unless on proper amendments, and very different proof, a good case can be made out, the suit must fail.

Reversed and remanded.