
    Thomas Butler v. The Incorporated Town of Malvern, Appellant.
    1 Defect in Sidewalk: Notice. On the issue whether a town had actual notice that a 'certain walk was defective, a resolution of the council requiring the owner to repair all his walks is admissible, though that particular walk is not mentioned in the resolution. Deemeb, J., took no part.
    
      Appeal from Mills District Court. — Hon. H. E. Deemeb, Judge.
    Thursday, May 24, 1894.
    Action to recover for personal injuries sustained by reason of a defective sidewalk. Verdict and judgment for plaintiff. Defendant appeals.'
    
    Affirmed.
    
      Shirley Gilliland and Sims & Bainbridge for appellant.
    
      Smith McPherson, L. T. Genung and A. E. Cooh for appellee.
   Given, J.

I. The sidewalk at the point where the plaintiff was injured was upon the right of way of the Omaha & St. Louis Railway Company, commonly called the Wabash, and had been constructed by that company some eight years before the accident. The walk was some distance above the surface of the earth, and was constructed of stringers resting on posts and covered with plank. On July 25, 1891, while plaintiff was passing along that walk, one of the planks, because of being decayed, turned under his foot, letting his leg pass through the opening, and causing him to fall so that he was injured. On the trial, plaintiff introduced in evidence a resolution adopted by the council on January 5, 1891, as follows: “Moved and seconded, the mayor and recorder give legal notice to the Wabash,or O. & St. L. R. R. Co., to repair their sidewalks and crossings.” Defendant objected, as incompetent and immaterial, and now complains of the overruling of that objection. One contention in the case was whether the defendant had actual notice of the condition of the sidewalk at the place where plaintiff was injured. While it is true that that particular sidewalk was not mentioned in the resolution, it did include all the sidewalks of that railroad company, and consequently the one in question. Defendant was permitted to prove that the resolution was not passed with reference to this part of the railroad company’s walk. We think there was no error in admitting the evidence, as it tended to show actual notice.

II. Appellant presents as the principal question on this appeal, whether the alleged defect in the sidewalk was of so long standing and so notorious that the defendant must be presumed to have had knowledge of it. In this connection, counsel discuss at great length and with much particularity the evidence relating to that issue. Their argument demonstrates beyond question that there is conflict in the evidence upon that subject. It is not authorized or required that, in this class of cases, we shall, on appeal, retry questions of fact. It is sufficient to say that this question was properly submitted to the jury, and that the jury was warranted by the evidence in presuming that the defendant had knowledge of the defective condition of the walk. We discover no errors in the record, and the judgment of the district court is therefore affirmed .  