The motion for an instructed verdict was, in my judgment, properly refused, and the cause rightly submitted to the jury, and for this reason I am unable to concur in the opinion *Page 329 of my colleagues. Their conclusion is reached upon the ground that the city had neither actual nor implied notice of the existence of the defect causing the injury.
There could, it is true, be no liability unless the city had such notice. The evidence, however, discloses facts from which notice of the defect should be implied. The ditch, forty-two inches in width and over forty-four inches in depth, was cut through the pavement, and after the piping had been laid was refilled with the dirt removed from it. Its surface, however, was left exposed to whatever rain might fall, and the effect or action of water on earth or soil is a matter of common knowledge, and under the authorities such knowledge is chargeable to a municipality. In City of Jackson v. Carver, 82 Miss. 583,35 So. 157, referred to in the majority opinion, the court said:
"It was said in the Nesbitt Case that `the knowledge of the action of the elements on structures of wood, and of the liability of timber to decay under certain conditions, is to be attributed to municipalities just as to natural persons.' In this case, is not knowledge of the action of elements on the banks of trenches to be attributed to the municipality? Is it not chargeable with the knowledge that continued rains will render the perpendicular banks of a trench liable to cave; that planks unfastened, lying loose upon the uneven surface of the ground, are liable to slip or give way under pedestrians who by the action of the city are invited to use such crossings? We think the same rule applies."
There is no question but that the refilling was properly done and the public rightfully permitted to pass over the ditch until the rain began or until sufficient water fell to cause it to sink or saturate the earth to such an extent as to render it unsafe for automobiles whose drivers were unacquainted with it. But it rained for two days previous to the accident, and the city knew when the rain started that, if it *Page 330 continued long enough, it would very probably create this dangerous condition. In fact, the assistant city engineer testified that a ditch filled as this one was might settle six or eight inches under such conditions, and the testimony of the person who supervised the laying of the piping was practically to the same effect. Hence, it appears to me that it should be held under such circumstances that the city, having created the condition which made it possible for the rain to cause the defect, had knowledge of it, and that it was its duty to do what was necessary to warn the public of it. Inasmuch, however, as the record discloses that nothing of this kind was done, the case was properly submitted to the jury. That the appellant should bear the consequences of its failure in this respect is the only conclusion, as I see it, the record justifies. Such a holding is not making the city an insurer of those who travel its streets, but merely requiring it to do what a reasonably prudent person would have done under the same circumstances.
The judgment, in my opinion, should be affirmed.