delivered the opinion of the Court.
This is аn action for personal injuries alleged to have been sustained by the plaintiff as a result of walking into “an excavation at the mouth of the alley just north of Ash street, made some hоurs before ... by Dan J. Farrell, his agents and employees, in pursuance of his contract with the сity . . . for the laying of an alley crossing at said place; that said Farrell • and said city, ■ . . - . knowing or being chargeable with legal knowledge of said excavation, negligently and carelessly аllowed same to remain open in the direct line of the sidewalk without due warning to pedestrians of its presence. ’ ’
No notice was given to the mayor of the city as required by chapter 55, Acts 1913. It was settled in White v. Nashville,
The act provides; “That no suit shall be brought against any municipal corporation in this State on account of injuries received by person or property on account of the negligent, condition of any street, alley, sidewalk, or highway оf such municipality, unless within ninéty days after such injury to the per. son or property has been inflicted; а written notice shall be served upon the mayor of said municipality stating the time and place where said injury was re
The question for decision is whether the injuries alleged to have been sustained by virtue of the condition of the sidewalk.are such as are included within thе terms of the act. It is said for plaintiff that the notice contemplated by the act would be useless inasmuch as the city caused the condition complained of to be creаted by contract with Farrell, and that the “negligent condition” referred to in the act refers tо negligent omission or failure of the agents and employees of the city ’to keep the streets, alleys, etc., in proper repair, and does not refer to a condition рroduced by the direct act of the city.'
The case of White v. Nashville, supra, did not determine the question presented here. That case, however, did determine that the notice must be given in the manner prescribеd by the statute.
This court has had the act under review in two cases. The case of Dunnington v. Columbia, MS. Decеmber term, 1915, held that the city of Columbia was not entitled to notice in a case wherein it injured thе property of the plaintiff by lowering the grade of a street upon which his property аbutted. In the case of McCarty v. Town of Mountain View,
But we are of opinion that this case is distinguishable from the cases last cited. The сity is not entitled to notice under the act where the injury complained of is the direct and оpen result of an act committed by the city itself. . In such a case the municipality which is entitled to the notice must know of the injury, and hence notice would be unnecessary. The declаration in this case avers that the negligence which resulted in the injury of plaintiff was the failure of the city’s contractor to give due warning of the defective condition of the sidewalk upon which plaintiff was walking. The city had the right to make the excavation, and, if not completed within a day, to leave it overnight. But it should have given warning. Therefore, plaintiff’s injury was not the direсt and open result of the act of the city. The proximate cause of her injury was the fаilure of the city and its contractor to give warning of the excavation created in thе alley. If proper warning had been given, plaintiff need not have fallen into .the excavation. The municipality may have known that the excavation was there, and it may have knоwn this as a result of its contract with Farrell, but it could not know of the negligence of Farrell in failing tо give warning. Maness v. Coal Corporaton,