The plaintiffs have recovered a judgment for damages suffered through the percolation of water into premises leased by them. It was shown at the trial that this water came from a leak in a small water main in the street in front of plaintiffs’ premises The leak was caused by a hole evidently cut in the water main by some sharp instrument. Obviously to sustain a recovery, the plaintiffs have the burden of showing that this hole was cut by one of defendant’s servants.
Upon this point the plaintiffs produced no direct evidence, but they showed that about two weeks before the leak was discovered the defendant had opened a trench in the street before their place of business, and closed it up again; that when the leak was discovered the defendant’s servants opened up the trench again, and one of the plaintiffs testified that the broken water main was in the trench where they had previously worked.
Inasmuch as this testimony, if true, would show that the defendant’s servants were the last persons who had access to the water main, and that no other person could have caused the break after the trench was closed, I think that the trial justice correctly held that the plaintiffs had established a prima facie case.
To meet this testimony the defendant produced five witnesses, including a plumber employed by the plaintiffs’ landlord, who all testified that the defendant had failed to find any leak in the original trench, and had then torn up the pavement for several feet in addition, and had found the break in the pipe over two feet away from the part of the street originally excavated, and several of these witnesses testify without contradiction that the edges of the break show that the break was old, and that a wooden plug was found near the break. This testimony to my mind so clearly outweighs the testimony produced by the plaintiffs that the verdict should be set aside.
Judgment reversed, and a new trial ordered, with costs to appellant to abide the event.