
    Ralph C. Vorce, appellee, v. Independent Telephone Company et al., appellants.
    Filed February 10, 1910.
    No. 15,811.
    1. Negligence: Question i»R Juey. Where different minds may reasonably draw different inferences as to whether certain facts establish negligence' or contributory negligence, the question of negligence must be left to the jury.
    2. Appeal: Instructions: Rbview. Where a requested instruction is refused by the trial court, but the court embodies the same idea in an instruction given upon its own motion, the party requesting such instruction having suggested it to the court will not be heard to complain that it is erroneous.
    Appeal from the district court for Douglas county: George A. Day, Judge.
    
      Affirmed.
    
    
      
      Benjamin S. Baker, for appellants.
    Smyth, Smith & Schall, contra.
    
   Letton, J.

This is an action to recover damages for personal injuries. The defendant corporations in May, 1907, were constructing a telephone system in the city of Omaha. In the prosecution of the work they laid a tile conduit across Tenth street in the city. In laying the conduit it became necessary to remove the paving, which consisted of stone blocks, and to excavate a ditch about two feet wide and to such a depth that the concrete covering of the tile conduit was about 3^ feet below the surface of the paving. After the conduit was placed the defendants filled the ditch with dirt, and it is because of the alleged negligent filling of the ditch and failure to firmly tamp the same that the plaintiff bases his right of recovery. On the afternoon of May 27 the plaintiff was driving a loaded two-horse dray or express wagon at a slow trot along Tenth street on his way to the railroad station. He alleges that a portion only of the dirt and stone removed had been replaced in the trench," and that the same was left loose, unpacked and not tamped doAvn and was about even Avitli the surface of the street; that he Avas driving" along the street, Avithout any notice or knoAAdedge that the dirt would not sustain the weight of the wagon, and that Avhen the front wheels came to the ditch the wagon gave a sudden drop, and he was by reason of the jar thrown forcibly to the ground under the Avheels, breaking his left arm and inflicting permanent injuries.

The ansAver alleges that the trench was filled and tamped in a thorough and workmanlike manner to the surface of the street; that the work was open and visible to all passers-by; that the plaintiff had knowledge of the condition of the street and ditch, and that whatever injury occurred to him Avas due to his own carelessness and negligence. On these issues the case was submitted, and. the jury found for the plaintiff, assessing his damages at $1,500. Defendants have appealed.

The first assignment of error discussed is that the verdict is not sustained by sufficient evidence. In this connection it is said that the evidence of appellee, standing alone, was that the dirt was filled to the surface of the street and was loose and untamped; that all the other witnesses say that the ditch was open and obvious; that the plaintiff’s case depends upon the alleged carelessness and negligence in filling the ditch with loose dirt, and that the contrary of this allegation has been overwhelmingly established by the testimony. A consideration of this assignment requires a summary view of the evidence. The testimony on the part of the plaintiff is that the wagon lie was driving had a high seat in front, upon which he sat; that the seat was at a height of between 8 and 9 feet above the surface of the pavement; that as he approached the locality of the accident lie could see where the paving had been removed and the dirt filled in, and that it looked to him as though it was level and safe. There was a pile of dirt and stones in line with the ditch near the sidewalk, where a manhole was being constructed. This was inclosed by barriers, and there was a space of 7 or 8 feet between the barricade and the west rail of the street car track. The plaintiff drove along in this space. When the wagon reached the ditch, the wheel dropped in between the paving stones, and the jar caused him to fall. He says he could see the ditch'at a distance of 30 to 40 feet, but we understand this to mean that he could see that the paving had been removed and a ditch dug, not that he could or did see any depression. There had been temporary barricades placed at this point while the ditch was being dug, but they had been removed a day or two before the accident. A number of other witnesses testify as to the condition of the ditch. The evidence on the part of the defense is that, when it was filled, the dirt was tamped and rounded up to a height of from 3 to 4 inches above the surface of the street; that there was a heavy rain after it was filled, and that some of the dirt adhered to the wheels of wagons passing over it and was deposited on the paving on either side by the jar when the wheels struck the paving stones. Defendants’ foreman testifies that, on measuring immediately after the accident, the dirt was from 3 to inches below the level of the surface of the paving. The witnesses, other than the plaintiff, all seem to agree that there was a depression at this point, but the testimony also shows that it was not so deep but that wagons had been continually passing and repassing at this place. One of defendants’ witnesses says that he saw many wagons drive across that day. Another, employed as a messenger boy, testifies that he ran over this place about 25 times a day; that when it was first filled in it was level with the street, but as the wagons went back and forth it was cut; that he could have ridden through it if he had wanted to be bumped; that, in order to save his wheel, he would pull his front wheel up and jump over it, and that if he had not done so the front wheel would go down about an inch or an inch and a half. Other testimony places the depression from 3 to inches in some places between the rail and the sidewalk. Some parts of the testimony we cannot clearly understand, since counsel directed the attention of witnesses and his questions to a sheet of paper, by bending which he sought to illustrate the condition of the depression. Unfortunately these curves are not in the record. Under the terms of the ordinance authorizing the laying of conduits, the defendants were required to obtain a permit from the proper city officers, and it was provided that they should “in all cases restore any and all openings made by them under this ordinance in such streets, avenues, alleys, boulevards, or public grounds, to good condition.” We think that the evidence clearly discloses negligence on the part of the defendants in not filling the ditch in such a manner as to make it safe for public travel, or if, as seems probable under the evidence, it was originally so placed, in not keeping it filled and in a safe and proper condition for travel. If tlie paving stones had been replaced, or if the barrier had been left standing, in all probability no accident would have happened.

The principal question in the case is whether or not the evidence that the plaintiff was guilty of contributory negligence is so clear that a verdict cannot be sustained. As to this, we are satisfied that the question was properly for the jury. We have the testimony of several witnesses who saw the depression from the level of the sidewalk, but the plaintiff is the only witness who testified to its appearance from a height of 10 or more feet above the street level, from -which point he must have viewed it. The evidence also shows that a good deal of traffic had been passing at .this point, and the street was muddy there. Under these circumstances it was for the jury to say whether, taking all the evidence into consideration, the plaintiff was guilty of contributory negligence in attempting to drive along the street at this point in the manner he was doing when injured.

Defendants next insist that the court erred in refusing to give instruction No. 4, requested by them, to the effect that, “if you find the ditch was open and the plaintiff saw the open conduit or ditch and déliberately drove into it, he took the chance of the consequences of his act.” We think the court did not err in refusing this instruction. There is no evidence that the plaintiff “saw the open conduit or ditch and deliberately drove into it.” Defendants’ evidence show’s that there was more or less mud and dirt at this point. The plaintiff says that it appeared level with the surface of the street from the position and height at which he saw it, and denies that he saw an open ditch. Moreover, the court by instruction No. 9 covered this point, and told the jury that, if they found “that the plaintiff knew, or by the exercise of reasonable care ought to have known, that he could not drive over the street at the place where the accident is claimed to have occurred, without danger to himself, then he could not recover in this action.” It is said in this connection that this instruction is not a fair statement, because the plaintiff testified that, had the ditch been open, he would have known it to be dangerous and would not have driven into it, but the instruction leaves the question of whether the plaintiff knew or ought to have known the dangerous condition of the ditch to be determined by the jury. The critical question was whether from the appearance of the ditch the plaintiff knew or ought to have known that to áttempt to drive over it was dangerous, and, if they so found, they were instructed to find for the defendants.

Complaint is made as to instruction No. 8, Avhich tells the jury: “Should you.find that the defendants did not use ordinary care in guarding and protecting the ditch, and in tamping the dirt therein, the plaintiff could not recover, if by the exercise of ordinary care and caution he could have avoided the accident.” We cannot see how this is prejudicial to the defendants. Under the evidence, as we view it, the sole question is: Was the plaintiff guilty of contributory negligence? And, while the question of whether the ditch was guarded and protected or not was not an issue in the case, still we cannot see how the jury were misled by this instruction or the defendants in anywise prejudiced. Besides, this instruction is in this particular a copy of one that the defendants requested the court to give; and, having suggested that they desired such an instruction, they cannot now complain because the court adopted their suggestion.

Defendants complain of the refusal of the court to give instruction No. 2, which undertook to state the allegations of negligence set forth in the petition. The court, however, by instructions Nos. 1 and 4, given upon its own motion, fully and correctly instructed the jury as to the allegations of negligence in the petition, and that the burden of proof was upon the plaintiff to show by a 'preponderance of the evidence that defendants were negligent in the particulars alleged. We think there was no necessity for a repetition, and that the trial court very properly refused to restate Avliat had already been made clear. Too many Avords often darken counsel. Upon the Avhole case, Ave think the main questions Avere for the jury to determine, and that we Avould not be justified in setting aside the verdict.

The judgment of the district court is

Affirmed.  