*784OPINION OF COUKT.
The following is taken, verbatim, fiom the opinion.
We are of the opinion that plaintiff below failed to establish his right to recover, by necessary proof. The obligation of the City is to keep the street open, in good repair and free from nuisance. The only question presented here is, was the manhole cover a nuisance within the meaning of that teim? It was incumbent upon the plaintiff to prove that the manhole cover constituted a nuisance and that there was actual or constructive notice of that fact by the Village officials.
Giving the plaintiff’s evidence the most favorable construction, it amounts to this: That the collar for the manhole cover was flush with the street and that the cover was flush with the collar. The manhole cover weighed approximately 160 pounds and there was some little play in the cover, perceptible when one jumped on one side of the cover. There was no evidence that the cover could possibly be thrown out of position by travel.
The boy testified that the lid was out of place and was raised on one side toward which he approached it, and that he struck it with his skate and knocked it back in place. If the lid was out of place, as testified to by the boy, there is no evidence to show when the dislocation of the cover took place, nor by what agency it could have been dislocated, if it were dislocated.
There is no evidence of any notice, actual or constructive, brought home to the village, of any dislocation of the cover from its regular seat, so that the plaintiff below failed in the two essentials .necessary to recover, to-wit, that there was such a faulty construction that the lid might have been thrown out of place by the use of the street by traffic and that the Village had notice, actual or constructive, that the lid was dislocated, if it was dislocated.
Failing in the proof as to these two essentials, the trial court, at the close of all the evidence, should have instructed the jury to-return a verdict for the defendant below, plaintiff in error here.
(Gushing and Mills, JJ. concur.)