This was a suit for personal injuries, pain, and suffering, alleged to have been occasioned plaintiff on account of the failure of defendant to comply with its duty of keeping and maintaining a portion of one of its sidewalks in a reasonably safe condition. The petition alleges, that a section of a certain wooden ventilator, covering a portion of defendant’s sidewalk, on which petitioner was standing, gave way, causing her to fall through, thereby inflicting serious personal injuries. The evidence shows that the wooden grate had been constructed and had been in use for a long number of years prior to the date of the injury. The suit is alleged to be in renewal of a former suit for the same cause of action, and is maintained by her administratrix, the original plaintiff having died subsequent to its institution. The jury returned a verdict for the plaintiff, in the sum of $6,500, and exception is taken to the overruling of the defendant’s motion for new trial. The grounds of the motion relied upon in *386the briefs filed by counsel for plaintiff in error are: (1) The cause of action is barred by the statute of limitations, and the suit cannot be maintained in renewal of the former suit, for the reason that the former suit was void on account of its failure to show a substantial compliance by the plaintiff with the provisions of the Civil Code (1910), § 910, relative to a presentation of the claim to the municipal authorities for adjustment (grounds 3, 13, 18, 19, and 20 of the amendment to the motion). Exception is taken to the failure of the court to state to the jury the defendant’s contention in this respect (ground 4). (2) The court erred in admitting, over defendant’s objection, the testimony of certain physicians, to the effect that the death of the plaintiff resulted from the injuries set forth by the plaintiff in her petition (grounds 1, 2 and 19 of the amendment to the motion). This evidence was admitted, expressly, only “ as a circumstance showing the extent of the injuries,” and in his charge the judge again plainly so limited its probative value, and expressly, confined the measure of damages to the pain and suffering sued for. (3) The charge was confusing in that it referred to the rule governing liability for both patent and latent defects, without defining these terms, and because there was no evidence to authorize any reference to a patent defect (ground 7). (4) The court erred in charging the jury as follows: “ If this damage resulted from a mere accident for which nobody would be liable after the city has exercised ordinary and reasonable care and diligence as I have charged you, then the city would not be liable.” This charge, it is alleged, was error for the reason that it was confusing and tended to mislead the jury; that if damage resulted from a mere accident for which nobody would be liable, the defendant, as a matter of course, would not be liable under any circumstances; that this charge “might well lead to the conclusion in the minds of the jury that for a mere accident the defendant would be liable, unless it had previously exercised all the care and diligence required in case of injury not to the result of the mere accident” (ground 8). (5) The verdict is not supported by the evidence, and is excessive (grounds 15, 16 and 17). The special contention in this respect is that the evidence showed that the sidewalk was not being used by the plaintiff at the time and place of the injury, in an ordinary manner and by herself alone, *387but tbat tbe plaintiff and three other persons were standing upon the grate at the time the defective bar gave way; that the evidence showed that this particular portion of the sidewalk and grate was not in fact constructed by the city, but by the owner of the abutting property, and that the grate was used to ventilate the basement of the building; that the evidence showed that all of the grate bars were sound except the one. which gave way, and that the unsound and decayed portion of the defective bar was confined to the under side, and that such rotten condition was not apparent to ordinary inspection; and that the city had neither actual nor constructive notice of the defect; that “the only evidence of actual notice is the testimony of J. A. Davis, a former marshal, that he notified Stephens N. Noble, a councilman, that the grate was in a bad condition, without specifying in what respect the condition was bad, or giving any further notice to the mayor or other councilman or the owner, and without taking any steps whatever to have the defects removed. This was during the year 1906, and it so happened that Mr. Noble was the only member of council for that’ year who was dead at the time the evidence of said Davis was taken.”
It is not necessary to add anything further to the headnotes.
Judgment affirmed on the main hill of exceptions; cross-hill dismissed.
Stephens and Mill, JJ., concur.