The charge of the court in this case is open to several serious objections. In the first place, it is not a full and fair presentation of the law of the case. Truly *169it is argumentative and presents the law more favorable to the defendant than it was entitled to.
It is the duty of the city to keep its streets and sidewalks in a reasonably safe condition, so that persons can pass thereon in safety by day or night; and for neglect to do so, the city would be liable for injuries caused by such neglect. If the defect, as in this case, had existed some time, then the city is chargeable with notice of such defect. If the city could have ascertained the defect, its failure to do so is negligence on its part, and its liability is the same as if it had notice of the same. So we think that the charge of the court contained in the 12th ground of the motion for new trial, “ that the defects must have been of such a character, so open and so notorious, and existed such a length of time, in the judgment of the jury, as to charge the city with notice,” was error.
Whether the court committed error in admitting or rejecting evidence offered on the trial, we presume the court will correct the same on the next trial of the case. A new1 trial is ordered in this case.
Judgment reversed.