delivered the opinion of the Court::

Whilst the learned trial justice stated there was nothing to< go to the jury upon the question of liability, he expressly declared that as matter of law the plaintiff was guilty of contributory negligence in attempting to cross where conditions of danger were obvious. Necessarily, before the question of plaintiff’s contributory negligence can be material, there must be-evidence tending to show negligence on the part of defendant.

The argument on the part of the plaintiff, assuming that the evidence required the submission of that issue to the jury, is exclusively devoted to the discussion of the question of contributory negligence. An earnest and forcible argument is-, directed to the proposition that the plaintiff’s evidence brings, the case within the rule enounced in Mosheuvel v. District of Columbia, 191 U. S. 247, 48 L. ed. 170, 24 Sup. Ct. Rep. 57. In that case the defendant had been undoubtedly negligent. In the view that we have taken of the case, there is no occasion to consider that proposition.

There was in our opinion no evidence of negligence on the part of the defendant that called for submission to the jury. It cannot be inferred from the fact that the streets were torn up between and alongside the rails of the tracks, and no plank or other safe crossing provided at the street intersections.

The act incorporating the Metropolitan Railway Company to whose franchises defendant has succeeded, provides that it shall be bound to keep the space between its tracks, and for 2 *595feet beyond tbe outer rails thereof, paved without expense to the United States; and the use and maintenance of said railway shall be subject to the municipal regulations. The supervision and control of the public streets are vested in the Commissioners; of the District, whose duty it is to see that they are kept in reasonable repair and subject to no unnecessary obstructions. This work of excavating between the railway tracks had been done presumably with the knowledge and permission of the commissioners. Of course such work must be done with reasonable care by those prosecuting it; but there is no evidence tending to show that in this case there was unnecessary excavation, or negligence in the way in which the work itself was being done. When expedient or necessary—of which the commissioners are the judges—that such works shall be done, it may go on regardless of the temporary obstruction of the streets, and such obstructions are not unlawful. We are advised of no statute or regulation that requires the defendant in paving between and alongside of its tracks to provide walks and driveways across its excavations at street intersections. While the commissioners might have required the construction and maintenance of such crossings by the defendant as a condition of permission to disturb the street at all,—and so far as the record discloses it would have been expedient and wise to exact such a condition,—there is nothing whatever in the case from- which it can be inferred that they did exact such a condition. So far then as the record discloses, the defendant was engaged in the performance of a legal obligation, and was; neither exceeding a reasonable depth ox width oí the excavation, nor performing its work in an unlawful manner. There is, therefore, no foundation for a finding of legal responsibility.

The court below, therefore, did not err in directing the verdict, and the judgment must be affirmed, with costs; but in taxing the costs no attorneys’ fee shall be included.

Affirmed,

Motion for rehearing overruled March 20, 1913.