Hopkins v. City of Ogden

• Decision Date: 17 January 1888
• Citation: 5 Utah 390,16 P. 596
• Court: Utah Supreme Court
• Parties: JOHN B. HOPKINS, AND ANOTHER, RESPONDENTS, v. OGDEN CITY, APPELLANT

16 P. 596

5 Utah 390

JOHN B. HOPKINS, AND ANOTHER, RESPONDENTS, v. OGDEN CITY, APPELLANT

Supreme Court of Utah

January 17, 1888

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The facts appear in the opinion.

Affirmed.

Mr. N Tanner, Jr., and Mr. P. H. Emerson, for appellant.

Mr James N. Kimball, for respondent.

ZANE, C. J. HENDERSON, J., and BOREMAN, J., concurred.

OPINION

ZANE, C. J.:

This action was instituted by the respondents to recover damages suffered by them in consequence of the alleged negligence of the appellant. The evidence was submitted to a jury, who returned a verdict for the respondents in the sum of $ 59. The appellant entered a motion for a new trial, which the court overruled, and then judgment was entered on the verdict. The denial of the motion for a new trial the appellant assigns for error. The appellant insists that the verdict was unauthorized by the evidence.

It appears, from the evidence, that the plaintiffs' horse while being driven by one Milton West, a boy engaged in delivering goods for them from their store, either broke through into a water-pipe beneath the surface of a public street in the city of Ogden, or stepped into an open hole in the surface of the street caused by a break in the pipe. The driver, West, testified that about October 5, 1885, he delivered some goods to Rev. McLaw's residence, and, as he drove away, his horse fell into a hole in the street about 15 or 20 feet from the sidewalk, and was injured in the shoulder; that the ground was wet quite a distance all around the hole, and that it had been so for two or three days; that he had not driven over that particular spot before, but near to it; that the ground was loose on the top; that he could not tell whether a hole had been covered or not; and that he saw no hole before the horse fell in. Rev. Joseph McLaw testified that he resided on Third street, between Main and Young, about a block and a half from the business part of the city; that he heard of the accident to plaintiffs horse in the fall of 1885, and of the place where it occurred; that there was a break in the watermain there, and it made a large hole in the street; that the break occurred a day and a half or two days before it was repaired; that the hole was filled with water, and could not be seen unless a person happened to notice the water welling up out of it; that it was in that condition for a day and a half or two days before the injury to respondents horse; that prior to that time the street had been out of repair over the water-pipe in front of Mr. Bank's house adjoining. Witness further answered: "I think my attention was first called to the defect in the street in front of my own house by children going to school putting sticks in the hole; and then, I think, in the second place, the meat boy who delivered meat at my house, rode up there, and his horse slipped in this hole, and it frightened the boy very much, and my attention was called to it in that way." The witness further testified that he went up town at noon, but found no one to report to, and in the evening he reported the matter to Mr. Stevens, the city recorder; that this was Saturday evening, and the street was repaired on Monday. The witness Hyrum Goodell, superintendent of water-works, testified that...