The manager of the plaintiff corporation testified: Came up shortly after the accident. The front wheels of the wagon were in the ground about five or six inches, and the prints of the horses’ legs where they were drawn out were about six or eight inches. This was on Third street just in front of Sims’ store, where the sewer had been dug out. The front wheels were in the ground where the excavation had been made and dirt thrown over it. The dirt did not appear to have been tamped or rammed down at all. It had been raining the night before, and it was washed over. There were some light buggy or wagon tracks—you could see the print of them where it had rained and washed them out. The sewer was dug out right in the center of Cherry and Third streets, and it bad been filled in. Eight in the center of Cherry street the place was dug out and fenced in, but on the other side on Third street, where the wagon was in the ground, was the only place where a driver could go across; that appeared to be the only safe place where he could cross at that time. There were no warm ings out, except just above, where a fence was put around the street. On Third street it appeared to be the same all along down, but appeared to be a little sunk in just below there. This place was intended to be crossed, for there was no other place to cross at above. The usual and direct route from Johns to the drugstore was the way he followed. The ground was not hard enough to stand the weight that went over it, and the horses being very heavy went under. The city could have packed it and it would have been impossible to have got into it. The excavation above there, where it had not been filled up, was eight or ten feet deep and three or four feet wide. The wheels of the wagon were six inches in the loose dirt, and the horses’ tracks in the dirt were half way to their knees. He might have crossed below this point, but that seemed to be the best place he could cross. He would have had to have gone way down Poplar street to get on the left-hand side of the street if he was coming up. Prom Johns’ bar he would naturally go on the right side; going from Johns’ oar he would have had to cross Poplar street in order to have got to the place where the accident occurred. Poplar street runs parallel with Cherry and on the other side of the excavation in Third, on the right-hand side, and on the left-hand side there was abundant width for anybody to drive. There was no place to cross after passing up the street in order to get to the drug-store, except the place where he did cross on that side of the street.Two city ordinances were in evidence. One required gas and water companies, under á penalty, immediately after gas-pipes were laid in any of the streets, to cause the excavations made to be graded and levelled with the street’s surface, and the dirt covering the pipes to be so pressed and pounded down that injury could not result to persons or vehicles passing over them. The other made it unlawful for any person to tear up, dig into, injure or change any sidewalk or street for any purpose, except upon application to the city engineer, etc.; and provided that when the digging or change should be .finished, the sidewalk or street should be, by-the person or persons making the excavation or change, put in as good condition as before the work was begun, the city engineer to be judge of the same.Hill, Harris & Birch, for plaintiff.R. W. Patterson, for defendant.
