(dissenting). — The first instruction condemned was concededly right so far as it went, and, if counsel desired a more complete'statement of its limitations, it was an easy thing to request it. Not having done so, I think there was no error. Concerning the other instruction mentioned, I am of the opinion the “defect” complained of was of such character that an omission to state in specific terms the general rule as to the city’s duty in *586respect to its streets could have worked no prejudice. That a loose plank, which is liable to trip and cause the fall of a traveler, is a defect which the city is boiind to remedy after actual or constructive notice of its existence is clear, and failure to correct such defect on such notice is, in my judgment, negligence as a matter of law. The court did instruct the jury properly as to the city’s duty in this respect.
I therefore dissent from the conclusion announced by the majority.