City of Phoenix v. Clem

(Dissenting). — The motion for an instructed verdict was, in my judgment, properly refused, and the cause rightly submitted to the jury, and for this reason I am unable to concur in the opin ion of my colleagues. Their conclusion is reached upon the ground that the city had neither actual nor implied notice of the existence of the defect 'causing the injury.

There could, it is true, be no liability unless the city had such notice. The evidence, however, discloses facts from which notice of the defect should be implied. The ditch, forty-two inches in width and over forty-four inches in depth,…