Southern Express Co. v. Texarkana Water Co.

Cockrill, C. J. The charge of the court is to be condemned for the reasons pointed out in Davis v. Railway, 53 Ark., 129. All of its parts cannot be made to harmonize. Without dwelling upon the inconsistencies, there is positive error in the seventh'instruction given at the instance of the appellee, who was the defendant below, which no incidental explanation in another part of the charge could rectify. In effect it declares that the defendant was not liable for the injury sustained by the plaintiff, even though it was guilty of negligence in filling the trench which caused the injury, if the trench had been suddenly washed out by rains, and the defendant was not apprised of its dangerous condition and could not have known of it by the exercise of reasonable-diligence. That construction of its meaning is as favorable for the defendant as ought to be placed upon it. 1. Negligence public street, If the defendant was negligent in the performance of its duty to restore the .street to the condition it was in before the excavation, and by reason thereof the rainfall, which came in the ordinary course of nature, displaced the newly filled earth, then its negligence was the proximate cause of the defect in the street, and it was liable for the resulting injury. “ It was not enough that the defendant left the work in a proper and safe condition for the time, but it was its duty to anticipate and provide for the natural effect of rains upon earth excavated and replaced,” and it is liable for any injury resulting from its neglect to do so. Johnson v. Friel, 50 N. Y., 679; Dillon v. Washington Gas Light Co., 1 McArthur, 626; Reeves v. Larkin, 19 Mo., 192. If guilty of no negligence in the performance of its duty to replace the street in the condition in which it found it, the defendant would not be liable for a dangerous condition subsequently occasioned by natural causes. 2. Notice of defect. The doctrine of notice of the defect in the street as a pre•1*1 requisite to liability, which is applicable to cases in which there is a duty resting upon the defendant to keep streets in repair after they have been properly constructed, has no application to a suit against one whose active agency has brought about the danger in the street. He is bound to take cognizance of the natural consequence of his own wrongful or negligent act. The instruction made an improper application of that rule, and is erroneous for that reason also. For the errors indicated the judgment will be reversed, and the cause remanded for a new trial. It is so ordered.