Plaintiffs obtained a verdict of two- thousand dollars for damages suffered by Emilie Hayward, the wife of her сoplaintiff, when she fell into a ditch or trench excavated by the defendant in a, public street during the course of his construction of a sewer system under contract. Work under this contract сovered a large area in the partiсular neighborhood in which the plaintiff lived and had been in course of construction for a period of some two *451 and a half months prior to the date of the injury. On the night on which the injury occurred, thе plaintiffs had been visiting a neighbor and on their return home over a path which they had frequently used the wife fell into- the trench and suffered the injuries which аre the basis of the accident. Plaintiffs had a general verdict in the sum of two thousand dollars, and frоm the judgment upon the verdict this appeal is taken.
The only grounds urged upon the appeal are: (1) That the respondent Bmilie Hayward had knowledge or the means of knowledge of the existence of the danger, that she voluntarily assumed the risk, and was therefore guilty of contributory negligence as a matter -of law; (2) that the respondent Bmilie Hayward’s husband bad actual knowledge of the danger and that his negligence in failing to warn his wifе of such danger bars recovery ¡by both himself and his wifе.
There is much respectable authority in support of appellant’s first point, and such, in fact, was the rule in this state until the supreme court, in
Meindersee
v.
Meyers,
Nothing was -said by the supreme court regarding the standing of the husband in relation to the award of damages for his wife’s injury and no- effort wаs made to distinguish the rule affirmed in
Basler
v.
Sacramento G. & E. Co.,
However, the Meindersee case was decided upon a statе of facts similar to those before us, and we must аssume from the decision that ‘all these questions wеre taken into consideration and that, where either husband or wife having knowledge o-r previous notice of the unsafe condition of a strеet voluntarily puts himself in a place of danger from which injury results to the wife, it is a question for the jury to determine whether either is guilty of contributory negligence.
Judgment affirmed.
Sturtevant, J., and Langdon, P. J., concurred.