Argument for Defendant in Error.

196 U. S.

9 D. C. App. 321; Curry v. Dist. of Col., 14 D. C. App. 423; United States v. Cole, 18 D. C. App. 504; Scranton v. Catterson, 94 Pa. St. 203; Davis v. City of Austin, 22 Tex. Civ. App. 460. The District of Columbia is liable to the same extent as other municipalities are. Barnes v. Dist. of Col., 91 U. S. 540; Woodbury v. Dist. of Col., 136 U. S. 450. Dubois v. Kingston, 102 N. Y. 219; Roberts v. Powell, 168 N. Y. 411, on which defendant in error relies can be distinguished.

It was the duty of the District of Columbia to so light this street as to show the existence of this stone.

Mr. E. H. Thomas, with whom Mr. Andrew B. Duvall was on the brief, for defendant in error:

No duty of the municipality was violated by permitting this stone to remain on the sidewalk. It was not, in view of its size and location, an unlawful obstruction, or a nuisance. See Building Regulation, January 1, 1877, p. 23, § 23; June 3, 1882, p. 23, § 23; November 1, 1899, p. 24, § 4; June 26, 1891, p. 27, § 11; December 1, 1892, p. 28, § 10; May 2, 1894, p. 31, § 10; August 8, 1892, Art. VIII, §3, p. 14; March 12, 1895, p. 23; Present Police Regulations, Art. VIII, § 10, p. 38; Webb's Digest, 65; Act of March 3, 1891, Bldg. Reg., pp. 80-89; O'Lind v. Lothrop, 21 Pick. 292, 297; 2 Dillon Munic. Corp. $734; Howes v. Dist. of Col., 2 D. C. App. 193; Dist. of Col. v. Libbey, 9 D. C. App. 325; Nor. Transp. Co. v. Chicago, 99 U. S. 635; Dubois v. Kingston, 102 N. Y. 219; Robert v. Powell, 16 N. Y. 414.

Municipalities must exercise ordinary care in the construction and maintenance of streets and sidewalks, but that duty is not violated by permitting a carriage block of the usual size to occupy the usual position of such blocks on the sidewalk, near the curb, and not upon that portion of the sidewalk which is designed for the use of pedestrians going upon or passing along the walk. Cincinnati v. Fleisher, 63 Ohio St. 229. A hitching post is not a defect. Macomber v. Taunton, 100 Massachusetts, 255; Rockford v. Tripp, 83 Illinois, 247. A

city's failure to place a fence around a water hydrant which is properly located cannot render it liable for an injury caused by a traveler driving against it. Vincennes v. Thuis, 63 N. E. Rep. 315; Canavan v. Oil City, 183 Pa. St. 611.

A municipality has the discretionary power to locate a fire plug on a sidewalk. Horner v. Philadelphia, 194 Pa. St. 542. Plaintiff in error was bound to exercise ordinary care. Howes v. Dist. of Col., 2 D. C. App. 188; Allis v. Columbian University, 19 D. C. App. 270; Dist. of Col. v. Ashton, 14 D. C. App. 579; Swart v. Dist. of Col., 17 D. C. App. 412; Quimby v. Filter, 62 N. J. L. 766; Moore v. Richmond, 85 Virginia, 538.

MR. JUSTICE MCKENNA, after making the foregoing statement, delivered the opinion of the court.

1. The first contention of plaintiff in error is that the stone was an unlawful obstruction, per se. This is deduced as a consequence from section 222 of the Revised Statutes of the District of Columbia, which reads as follows:

"No open space, public reservation, or other public grounds in the city of Washington, nor any portion of the public streets and avenues of said city, shall be occupied by any private person or for any private purpose whatever."

This section cannot be construed to prohibit putting upon a street any object without regard to its effect on the use of the street. The sweeping character of such a construction need not be pointed out. There are objects which subserve the use of streets and cannot be considered obstructions to them, although some portion of their space may be occupied. This is illustrated by a number of cases.

In Dubois v. City of Kingston, 102 N. Y. 219, a steppingstone three feet four inches in length and twenty inches wide was placed on the edge of the sidewalk. The court observed that the stone was not of unusual size or located in an improper place, and that it would be extending the liability of cities too far to hold them liable for permitting-stepping stones on the edge of sidewalks.

Robert v. Powell, 168 N. Y. 411, was also an action for injuries caused by a stepping-stone. The court said: "There are some objects which may be placed in or exist in a public street, such as hydrants, hitching posts, telegraph poles, awning posts or stepping-stones, such as the one described in this case, which cannot be held to constitute a nuisance. They are in some respects incidental to the proper use of the streets as to a highway. The stepping-stone in this case, located upon the sidewalk in front of a private house, was a reasonable and necessary use of the street, not only for the convenience of the owner of the house but for other persons who desired to visit or enter the house for business or other lawful purposes."

It was further remarked: "The question involved in this class of cases is, whether an object complained of is usual, reasonable or necessary in the use of the street by the owner of the premises, or any one else."

City of Cincinnati v. Fleisher, Ad'mr., 63 Ohio St. 229, 234, also passed upon a city's liability for the existence of a steppingstone upon a sidewalk. The court said: "It [the stone] was within that portion of the street by the curb which, according to common usage, is devoted to carriage blocks, lamps, hitching posts and shade trees, which pedestrians of ordinary care observe and avoid." And Elster v. Springfield was quoted, to the effect that "the laying of sewers, like that of gas and water pipes, beneath the soil, and the erection of lamps and hitching posts, etc., upon the surface, is a street use, sanctioned as such by their obvious purpose and long-continued usage."

It was held in Macomber v. City of Taunton, 100 Massachusetts, 255, that a hitching post was not a defect in the highway for which the city was liable for permitting it to remain.

Plaintiff in error cites City of Scranton v. Callerson, 94 Pa. St. 202, and Davis v. City of Austin, 22 Texas Civ. App. 460.

In the first case, an iron water plug in the middle of a street and projecting above its surface, was held to be a nuisance. Obviously the case is not in point. The second case sustains

the contention of plaintiff in error, but cannot be followed against the authority and reasoning of the other cases.

2. The second contention of plaintiff in error is that it was the duty of the District of Columbia to so light the street as to show the presence of the stone thereon, the District having full knowledge thereof. This duty is made to rest mainly upon section 233 of the Revised Statutes of the District of Columbia, which is as follows:

"The proper authorities are directed to increase, from time to time as the public good may require, the number of street lamps on any of the streets, lanes, alleys, public ways and grounds in the city of Washington, and to do any and all things pertaining to the well lighting of the city."

This, in one sense, is but another form of the first contention. The duty of a city to especially illuminate a place where an object is, or to put a policeman on guard by it to warn pedestrians, depends upon the object being an unlawful obstruction.

The plaintiff in error can claim nothing from the general duty of the city under the statute to light the streets. The exercise of such duty was necessarily a matter of judgment and discretion, depending upon considerations which this record does not exhibit.

Judgment affirmed.

MOORE v. UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

No. 71. Argued December 6, 1904.-Decided January 3, 1905.

Usage may be resorted to in order to make definite what is uncertain, clear up what is doubtful, or annex incidents, but not to vary or contradict the terms of a contract.

Under contracts between a San Francisco coal dealer and the United States for the delivery of coal at Honolulu "at wharf" or "on wharf as customary," the customs referred to held to be those of Honolulu and not of San

Francisco, and that the United States, in the absence of any provision to the contrary, could not be held liable for the demurrage paid by the shipper to the owners of vessels carrying the coal for delay in discharging their cargoes on account of the crowded condition of the harbor. In engagements to furnish goods to a certain amount the quantity specified governs. Words like "about" and "more or less" are only for the purpose of providing against accidental and not material variations. Under the contract in this case for delivery of “about”- 5,000 tons of coal the United States cannot refuse to accept more than 4,634 tons, but is liable for the difference in value on 366 tons tendered and acceptance refused.

THE facts are stated in the opinion.

Mr. L. T. Michener, with whom Mr. W. W. Dudley was on the brief, for appellant:

As the agreement was prepared by the Government it will be construed most strongly against it. Garrison v. United States, 7 Wall. 688, 690; Chambers v. United States, 24 C. Cl. 387, 392; Simpson & Co. v. United States, 31 C. Cl. 217, 243; Edgar & Thompson Works v. United States, 34 C. Cl. 205, 219.

The Government was bound by the customs of the Port of San Francisco. 2 Parsons on Contract, side pp. 535, 539; Robinson v. United States, 13 Wall. 363, 366; Hostetter v. Park, 137 U. S. 30, 40; Honge v. Woodruff, 19 Fed. Rep. 136; Smith v. 60,000 feet of Lumber, 2 Fed. Rep. 396; Moody v. 500,000 Laths, 2 Fed. Rep. 607; Pleasant v. Pendleton, 6 Rand. (Va.) 493; Barlow v. Lambert, 28 Alabama, 704; Foley v. Mason, 6 Maryland, 37; Van Hoesen v. Cameron, 54 Michigan, 609; McClusky v. Klosteman, 20 Oregon, 108; Lyon v. Culbertson, 83 Illinois, 33; Maclachan on Mer. Ship. 360; Abbot on Ship. 228; Parsons on Ship. 324; Barnard v. Kellogg, 10 Wall. 390, distinguished. It is immaterial whether or not the officers and agents of the United States had knowledge of the custom. Phillips on Ins. §§ 980, 1003; Thatcher v. McCulloch, Olcott, 365; Lowry v. Russell, 8 Pick. 360; McMasters v. Pa. R. R. Co., 60 Pa. St. 372; Pittsburg Ins. Co. v. Dravo, 2 Phil. W. N. C. 194; cases and authorities cited supra.

The facts proved as to the conditions at Honolulu do not