The complaint alleges that the defendant prior to November 1, 1919, “ made an excavation, hole and opening in the pavement on Conklin avenue ” in the city of Binghamton, and that “ after making such excavation, hole and opening, the defendant * * * wrongfully, unlawfully, negligently and carelessly omitted, failed and neglected to properly fill said excavation, hole and opening, but left it only partly filled with loose dirt, by reason whereof at the time of the casualty hereinafter mentioned and for a considerable time prior thereto said Conklin avenue * * * was and remained in an unsafe, dangerous and defective condition with a hole or depression therein nearly, if not quite, a foot deep, about two feet wide measured east and west, and about thirteen feet long measured north and south; that in addition to leaving said space, place and street in a defective and dangerous condition as aforesaid, said defendant, The City of Binghamton, * * * negligently and carelessly failed, omitted and neglected to place or leave thereat a lighted red lantern or any other signal or warning of such condition.” It is further alleged that the plaintiff ran into this hole with an automobile, that the vehicle was deflected from its proper course and upon the track of a street surface railroad, where a collision occurred, resulting in the injuries for which damages are claimed. These matters are, for the purposes of this discussion, purely incidental, as the complaint was dismissed upon the theory that the plaintiff had failed to give the notice required by section 244 of the Second Class Cities Law.
There is no claim that the plaintiff had given the notice. The case proceeded upon the theory that the defendant having itself produced the dangerous condition was not within the *187protection of the statute. The learned trial court dismissed the complaint, holding that the plaintiff, under the facts as they appeared in the evidence, was bound to show the service of the notice -required by the statute. This presents the only question upon this appeal.
The evidence may be deemed to have warranted a jury in finding that the city of Binghamton had made an excavation in the street named for the purpose of making a water connection for a house being constructed along that highway; that after making the connection the excavation was refilled with the dirt which had been excavated, with the exception of a rock weighing about 200 pounds, and a portion of the paving brick; that the earth was tamped and rounded up over the spot to a height of about five inches, and that automobiles and teams passed over the same without showing any substantial depression for a period of a half hour after the work was done; that the work was left at about a quarter to four in the afternoon of November 1, 1919, the paving brick not being relaid but placed upon the curb near at hand obviously to await the settling of the materials placed in the excavation. It appears to have been misty at this time, and subsequently “ quite a bit ” of rain fell and at seven-thirty of the same evening a car owned by one M. E. Hoose appears to have run into the excavation and been disabled. So far as appears no one had discovered the depression of about one foot until seven-thirty, at the time the Hoose car drove into it. So far as the evidence discloses there was no change in the appearance of the place from the close of the work until this prefiminary accident. The car in which the plaintiff was riding followed the Hoose car at an interval of about five minutes, and the accident complained of occurred.
It appears from the evidence, and it was conceded by the plaintiff’s counsel, that there was not to exceed fifteen minutes of constructive notice of the condition of this highway to the defendant; and the evidence clearly shows that so far as any appearances could be trusted the street was in as good condition as it could be expected after the completion of the necessary and lawful work of making a water connection in the highway. It is a matter of common observation and experience that in making excavations it is impossible to *188return all of the materials taken out immediately; time and the action of the elements are necessary to restore the earth to its former condition, and it is no uncommon thing to find the earth settling in unexpected places. While a liberal use of water in tamping may obviate some of the difficulties the practice is common to tamp the earth as well as may be under the circumstances and to leave it to settle before restoring the pavement, and this is obviously what was done in the present case. Viewed after the accident, we might say that the defendant might have used a higher degree of care, but the test is a reasonable degree of care, and the evidence in this case clearly indicates, in connection with the presumption that all persons have done their duty, that the defendant followed the usual practice in this case. The street at four o’clock appeared to the plaintiff’s husband, who passed that way, in good condition, the earth being rounded up over the place where the excavation had been made, and no change is shown in that condition until five minutes before the accident complained of, and if a notice of the defect was due to the city as a condition of the right of recovery there can be no doubt that it did not have such notice constructively, and no pretense is made of any other notice. While it was, undoubtedly, the duty of the defendant to watch this excavation and to be prepared to fill in any considerable depression, in preparation for the restoration of the paving, having followed the usual practice and completed the work so far as it could be done for that day, it is hardly reasonable to expect that it would patrol the ground in anticipation of a cave-in, where after a half hour’s usage it had demonstrated no defects. We discover no difference in principle in this case and in that involved in Farrell v. City of New York (113 App. Div. 687) where the city of New York had constructed a sewer and filled in the excavation, which subsequently caved in resulting in injuries to the plaintiff. There were no surface indications of the defect and the city had no notice, actual or constructive, of any defect in the sewer beneath. Assuming, as we are bound to do in the absence of evidence of negligence in the performing of the lawful work of opening the street for a water connection, that the excavation was filled in in the manner customary in such cases (Schmidt v. City of New York, *189179 App. Div. 667, 671), we are of the opinion that the defendant is entitled to the protection of the statute, and that the judgment appealed from is right and should be affirmed.