| Iowa | Oct 25, 1875
The only point made by ajipellant is that the verdict is contrary to the instructions, and not sustained by the evidence. Upon request of defendant the court instructed the jury as follows:
“4. That the defendant is only liable for ordinary care in •keeping its streets in repair; ordinary care being such care as a prudent man would exercise in regard to his own affairs, under like circumstances.”
“5. The construction of water works in thé streets of the city of Des Moines was a right the city had by law, and it might lawfully delegate such right to the Des Moines Water Company, and such company, in putting in such works, would be held to use no greater diligence in keeping the streets in repair than the city would, if constructing them.”
“6. If the injury complained of resulted from a latent defect in the street caused by the sudden settling of the water trench, by reason of recent rains, or from any other cause which could not be guarded against by ordinary care on the part of the city, or water company, then, and in such case, the city is not liable therefor.”
“8. If the injury complained of resulted from the negligent acts of the Des Moines Water Company, in laying down its*418 water pipes in the streets, the City of Des Moines is not liable for the damages resulting therefrom, unless the plaintiff shows either that the city had notice of the defect in the street, caused thereby a sufficient time prior to the happening of the accident to enable the city to repair the same, or that the defect was open and notorious, and existed for such length of time as to make it carelessness on the part of the city in not discovering the same.”
The court, upon his own motion, further instructed as follows:
“Actual notice would of course be sufficient, but it is not necessary in all cases. It may be inferred from the notoriety of the defect or damage, from its continuation for such length of time as to lead to the presumption that the proper officers did, in fact, know, or with proper diligence and care, might have known the same.” The position of appellant is that the ditch became soft and settled because of a heavy rain the evening before, that there is no evidence that the city had notice of the condition of the ditch, and that the defect had not existed a sufficient time to raise a presumption of negligence on the part of the city in not discovering it.
From the evidence it appears that the ditch was dug about* the first of October, and it was filled the next day. The injury to plaintiff’s horse was inflicted on the 18 th day of November. The plaintiff téstifies that the day after the accident she saw that not nearly all the dirt which had been taken out of the ditch had been put back, and that *it had settled so there was quite a hole. There was a good deal of what he called mortar bed. It appeared to be very loose. The horse smashed right down. The jury may very well have found from the testimony that if the ditch had been properly filled, nearly, if not quite, all the dirt which came out of the ditch would have been put back, and that it would not have become like a mortar bed. They may also very fairly have come to the conclusion that after being filled for seven weeks, it was so settled as to make quite a hole; the settling did not all occur in one night. It is very evident from the testimony as to the condition of the ditch, that it had been carelessly and negligently filled. And, as it had been filled for seven weeks, it is not a
The jury were fully warranted in finding, either that the city knew that the ditch was not properly filled, or was culpably negligent in not knowing it. In either case it is liable.
Affirmed.