
    JOHN B. HOPKINS, and Another, Respondents, v. OGDEN CITY, Appellant.
    Municipal Corporations. — Negligence.—Respondent’s horse, while being driven along the street, broke through into a water pipe or stepped through a hole caused by a break in the pipe, which had occurred two days before it was repaired and a day or two before the injury. Several breaks of a like character occurred at the place about that time, and the break was not repaired until a day and a half or two days after actual notice to the city recorder. There was no stick in the hole and nothing to indicate danger and they did not notice the hole; held, that a verdict for the respondents was not so clearly against the weight of the evidence as to require a new trial.
    New Trial. — Setting Aside Verdict. — The court will not set aside the verdict simply because it inclines to the belief that it should have been otherwise, but it must be satisfied and clearly convinced that the verdict is wrong.
    Appeal from a judgment of tbe district court of tbe first district, and from an order refusing a new trial. Tbe facts appear in tbe opinion.
    
      Mr. K. Tanner, Jr., and Mr. P. IT. Emerson, for appellant.
    
      Mr. James N. Kimball, for respondent.
   Zane, C. J.:

Tbis action was instituted by tbe respondents to recover damages suffered by tbem in consequence of tbe alleged negligence of tbe appellant. Tbe evidence was submitted to a jury, wbo returned a verdict for tbe respondents in tbe sum of $59. Tbe appellant entered a motion for a new trial, wbicb tbe court overruled, and then judgment was entered on tbe verdict. Tbe denial of tbe motion for a new trial tbe apjiellant assigns for error. Tbe appellant insists tbat tbe verdict was unauthorized by tbe evidence.

It appears, from tbe evidence, tbat tbe plaintiffs’ borse, 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 Eev. 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. Eev. 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 water-main 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 á 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 G-oodell, superintendent of water-works, testified that three breakages occurred in tbe water-pipe on Third street, between Main and Young-streets, in tbe fall of 1885 — two in front of McLaw’s bouse, and a third between that and Dr. Anderson’s; that be repaired one in front of McLaw's on September 14th, and one between bis bouse and Dr. Anderson’s on October 13th; that the one in front of Dr. Anderson’s was a large break, plainly to be seen, and that be put sticks into tbe^boles when be learned of them.. Tbe driver stated that he saw no stick in tbe bole bis horse fell into; and witness McLaw testified that be saw none, nor anything- to warn persons of danger. It further appears, from tbe evidence, that tbe superintendent of tbe water-works repaired another break on tbe same day, and before be repaired tbe one on Third street. Tbe character and frequency of tbe breaks in the water-main near tbe place of the injury indicated that tbe pipes there were so defective as to render tbe streets insecure, and travel on it dangerous to horses.

Under the averments of tbe complaint, it was proper to show that tbe pipe was defective when new, and continued so until tbe injury, or that it became so from age and use, or from any other cause.- If tbe officers or agents of tbe city in charge of tbe water-pipes or of tbe streets, because of incompeteney or tbe want of attention, failed to discover that tbe pipe was defective when new, and remained so, or that it had become so by age or use, or any cause, and did not repair it with diligence; or if they bad actual notice of tbe particular break, and did not use reasonable means to warn travelers of tbe danger, or did not repair tbe break, with reasonable diligence, after actual notice; or if tbe pipe remained defective or insecure for such a length of time, and under such circumstances, that such officers and agents, in tbe use of reasonable capacity and diligence could have ascertained such defect and insecurity, and did not learn of it, and did not repair with reasonable diligence —in either casé tbe city would be chargeable with negligence. Tbe law gave to tbe city of Ogden the control of its streets, and tbe right to repair them,. and also the right to -lay its water-pipes beneath their surface. To accomplish these ends, it was authorized to collect taxes, and, having this power, it was required, for the safety of tbe traveling public, to keep its streets in repair. It was its duty to use all reasonable diligence and skill to make sncli water-pipes and streets safe and secure. The public lias a right to insist that the city, by its officers and agents, should use all reasonable diligence to render the streets and water-ways safe and secure; and, in case of injury to persons or property because of the lack of such skill or diligence, the injured party has a right to demand compensation from such corporation.

When there is no evidence to support the finding of the jury as to any essential fact, or when their finding as to any such fact is clearly against the weight of the evidence, the court should not hesitate to grant a new trial; but, when the court is uncertain and in doubt as to the side upon which the evidence preponderates, it will not disturb the verdict. The court will not set the verdict aside simply because it inclines to the belief that it should have been otherwise. A party to a law cause has a legal right to submit issues of fact to a jury, and the court should not set aside the finding of a jury on such an issue, unless it is able to say without hesitation, and free from all reasonable doubt, that the finding was wrong. In an equity cause the chancellor regards the finding of the jury on an issue of fact as advisory. Its effect is to aid the judgment and conscience of the chancellor. He may disregard such a finding if he merely differs from the jury in respect thereto. The law is different in suits at law. In such, the court must be fully satisfied and clearly convinced that the verdict is wrong.

After a careful consideration of all the evidence in this cause, we are of the opinion that the exception to the ruling of the court below, on a motion for a new trial, is not well taken. Other errors were assigned, but we do not consider it necessary to consider them separately in this opinion. We find no error in this record, and therefore affirm the judgment of the court below.

Henderson, J., and Borem:an, J., concurred.  