A duly licensed plumber of the city dug a ditch on "Wheat street to make a sewer connection. The ditch extended from the south side of the street to a point about twelve inches from the railroad track which ran in the center of the street, and on the north side of the track to a point eight or nine feet from the sidewalk. The track was tunnelled under, the surface there being left undisturbed. Plaintiffs’ servant was driving two horses hitched to a carriage. "When he reached this place, he stopped the horses, raised himself up, looked forward at the street for a few moments, and then started his horses in a slow walk along the railroad track, the carriage wheels being inside of the rails. He seemed to have. the horses under control, and was driving cautiously. Had he driven on the north side of the street next to the sidewalk, over the portion not excavated, he would have had to drive over a bank of earth thrown out of the ditch, causing the carriage to lean three feet lower on one side than on the other. On one side of the excavation was a pile of earth, and on the other side a pile of paving-stones. It was a bright day, about one o’clock. As he drove along the railroad track between the excavations, one of the horses shied and threw himself and the other horse into the ditch on the north side of the track. Had there been guards or barriers strong enough around the excavation, the horses could not *614have fallen in. The ditch into which they fell was dug on the previous day. The driver could have gone to his destination by other streets without much loss of time. There was nothing to give notice of the danger, except the excavations themselves and the piles of earth and stone. The horses died from the fall. Plaintiff's alleged that the city was negligent in suffering the excavations to be made without any guard or protection of any sort around them.
W. W. Haden, for plaintiffs. J. A. Anderson and Pulton Colville, for defendant.