Show HOPKINS VS OGDEN A suit for Dani aces against hie tile city THE CLAIM CLAM AND did the city repair in tte the water pipes promptly IA I A long tr jal rot for a small sinn sum in the district court court on oil thursday thural ay afternoon to tio case of 1 B D hopkins a t al vs ogden city appeal appell was taken up I 1 in this case plaintiffs plaIn tiffi claim damages to tho the amount of 75 alleged to 0 o have lave been sustained by an accident to a delivery horse caused by a defective place on third street between slain main and young streets in this city tho the suit was originally planted pl in the justices Justic ce court and a demurrer to the conila complaint by tho tile city attorney was sustained tho tile plaintiffs therefore appealed to the district Dist rift court in tho tito case now on oil trial J N kimball esq represented tho tile plaintiffs and N tanner Jr appeared for the caitlin john 11 II II 11 wai wag sworn and fic I 1 that ho lie was ono one of tho the liffe tiffi it in tile case a I 1 ile boia is a merchant of ogden city and in in october 1886 ho ito used to deliver goods by means of and anti wagon on tho who drove I 1 his team was named milton west W cst at that timo time third street between main and young you streets was a 11 wu public alic thoroughfare arc october loth witness nm 9 horse became lamo lame in in uio vie right shoulder when tho the animal started out he fie was sound and well when 11 I 1 mr r II ll discovered the ills horse horses s condition lie sent the animal to mr isel nel pons sons livery stable and anti hired another horse witness paid Ws 21 per month for three months for pasturing the tile horse mr nelsons charges were 40 for doctoring and lie tile it use of another er horse this was a reasonable charge for tile use of a hoe ho e the horse before ho ito was injured was wort worta 73 after the injury ft a perron probably would mould not purchase him he lie might have been worth va t 10 ilia value vail lowas was 25 or bicsi than it wa was before the injury took place the tile day after the accident tile threet ap appeared to bo be allright albright all right workmen hal evidently alven there waking making repair rep airo crosb cross examined by mr tanner witness has no means of knowing tho the exact date of aa As near aa lie it was october eth the bill for damage damages was p presented resented to tha the counsel one mouth after that date witness was not present when then tho the horse waa was hurt ho ila baa only tho statement of his teamster in fit tho the matter witness is not a judge of horse but could tell by bythe alie action of a horbe u whether I 1 ho is injured y ed in I 1 i the tile ankle or tile hado shoulder er Y this ills is I 1 8 I 1 taug taught id by instinct witness instinctively guesses that tile int injury ryma waa a in in the shoulder and not in t the I 1 e ankle W 1 ian innoes knows know no difference between tho if 0 1 lA menes of a horse in tile inkle ankle or in in lie e tile horse might have been affected affe eted in the ankle joint or lie might have been pricked in tho tile hoof witness thinks s ho lie paid per month tor for pasturage tho the horse was out three months witness baa has a bill for mr nelsons services but not tor for the tile pasturage the lionso torso was in in nelsons care about two months and the charges were 37 nelson blistered blistered uio animal three times uvo or six days were required for tho the operation of each blister witness haa has never dealt in horses and docs does not know the market value of title horse at tile time lie was wag hurt nor at the time he lie got well m ell the dorfo u was tried a few times ho lie would mako make ono one trip and come back limping lle e direct part ot of charges was for the tile luro hire of another horse sixty seven beven dollars was the tile total tt aj amount paid to nelson witness did not include in the claim lie the charge for feeding the borso torso li ReL crom the 37 in the claim were paid for the use of another borso and tor for doctoring docton ng tho the animal that was injured milton west was sworn iio testified that in october 1880 lie waa wag driving mr II Il delivery horse arso on october ath lio lie was driving on street ile drove on tho the sidewalk and on coming out again his ills horse fell in a it hole about 15 or 20 feet from the sidewalk outside the ditch and near tho the middle of the street the hom was hurt and walked ume lame when witness started out tile horse was in good condition the tile hole was on the line of the waterworks pipe and the soil around was quite damp wit W it ness de delivered livere I 1 goods tor for four days dai s after that time then witness left le ft I 1 ie saw that another horsa horse was w bein being use used after dafter that timo time durin during zt the 11 f conr nr days witness the home was wag lame cross examined exa minel witness dro drove ve the horse a little over oter a month lie ile was shod about three weeks before the accident occurred witness saw I 1 the damp place two or three days before and the horse torso we went in nearly up to ho the shoulder the soil was heaped u up p over tho the as it was all along th there ere and there was nothing to denote denoto any defect in tho the street except tile moisture f charles nelson took the stand and testified to the lameness of tho the borso and to hi hits application of tho the bli witness treatment of tho the horse was proper 0 per and necessary the charges kr for attention to the injured boreo horse and anti for forthe alie liiro hire of another reasonable before the i injury the lioret was worth 75 after tho the injury and cure of the animal lie was worth from fao 50 to 75 tile injury to tho ilia horse would d depreciate e c la t e his value probably 25 er croas r 0 me m examined e witness never drove the horse any distance does i not know if tho the horse stumbled ed before thein the injury jur r alie shoulder of lie horse was sw ellid stepping epping Bt into a hole might cause such swelling if a horse were driven against a post or a tree tho the same result might ensue mr II Il was recalled and stated that he presented a bill of dama damages lea to tho the council about one month M anth after tho the accident occurred mr 31 r kimball desired to introduce uce testimony from I 1 alio llio lie plaintiff in ih regard to the ali 0 o action of tho the council intending to show th that it the tile council recognized tho the clain claim mr tanner objected and the court took tho the matter under advisement adjourned till 10 a va on Friday 4 r tile case was continued this morning kev josiah mclain took tile stand andhor and for tile plaintiff to 0 o ho the condition fit of file street at ho tile time tho tile accident occurred ho ile corroborated the evidence of the former witnesses mr that he lie called ho the attention of city official officials to the condition of the street on monday following tile time of tho the accident ex councilor Will willaim aini driver was called and plaintiff proved by this gentleman wh olvas superintendent of water works and supervisor of streets in october 1886 also m who ho aras was reorder recorder at hat that time anti whether T D dee me was a member of tile council nt at that timo time thia this closed tho the testimony for plaintiff and mr tanner argued a niolon j for a nonsuit non suit on the ground that neg 1 lecton elect lect on the part martof of the thecia city y haa hu not been shown ithe tho evidence shows that the defect was remedied as quickly as possible after the matter wae called to I 1 I 1 I 1 I 1 I 1 1 I 1 F the attention of lie tile tho the vi plaintiff 1 in must eli shott 0 w I 1 at tile it hs 14 been 1 1 it lulo tho motion i ollon was being argued tho tile juo jury left the uie room sir kimball claimed that the test mcbain showed that tho the city had I 1 lad been notified quite a quibble occurred to what mr mclain did lid say the reporter orter via was requested to read the besth testimony 1 ol 01 of the witness if it shoved ed that lio lie tol told Z recorder siemens stevens on oil saturday sa evening of the condition of the tile street tr sir mr ItIc mclaws Lains remembrance inco of tile ho matter wag was that the lepain were made on oil the monday liondas following bollom in tho the court concluded C ed that the question was one bl bf fact for the jury to consider i A recess till two pm As tal taken ell at 2 p in mr mclain was recalled by tho lie ile informed mr stevens of 0 the break the same day d i on which it ws waa discovered eo so far as he remembers there was only one break directly in in front of w witnesses residence at the lie time in question ti estion mr Il was askel if the acci dent cut occurred on oil tho the rith of october a s near as ho lie can remember iio 1113 ro rl plied in m alio the tile defence defense admitted that th it tile bill daiy diy of october 1885 fallon fell on nonday mond dl mr fr tanner lien then made the opening speech for the defense to alie jury hiir the defense consists in in a general denial of all tile facts alleged the firby witness called by I 1 tho defense was badr dr P ii andersen anderson ile giorc rc tile breakages in in tho pipe file on third street them there NA ere at least four or live of them ile 1 1101 notified tile proper persons and they lie acro all promptly repaired irel to the lest best of knowledge knowl edgo tho thor hole into flito vanch plaintiffs horse fell was ft as quickly repaired crogg a examined witness doea does not think the leakage remained I 1 two das days before it was repaired recorder T J stevens 18 w next ilet called wit fitness ness w atia 0 city it in octoba october el aw 1 haaf nothing to do with the streets of it IV DO pirt of ina his duty to hae lave anything pirt to do with tile streets of checky the city witness docs does not remember receiving rec receiving eivin g an any n notice otice from mr mclain n about a deree defect ton on third street in in 1885 crow examined it ignot ia not customary for people to call and complain of defects in the tile street streets witness atness sometimes directed persons having lia ing complaints to the tile proper parties J yx x Mc tool took the ill e staid stand ho lie remembers tile claim of damages from mr If hopkins against tile city tor for alleged injuries sustained by a horse bitne ionea did not leov of any bad place in in the street before tile alleged injury to the horse tha animal was worth probably james J burrup took the stand has milt no oilier other interest in in the city council other than being a tax payer of ogden cit city mr Il horo horse was morth from 47 to ma 0 in in 1885 1985 to mr kimball saw tile horse before and after tho the in injury to mr tanner tanne r alie alue horo is worth as much today to day as lie was in in 85 goodale who had charge of tile V ater works it in iwa the breakage in front of mr mccame Mc Lains occurred on oil off of pt ember and was repaired promptly another broil break occurred 1 in I that vi mcinty C october and faill another in ov ember all were quickly repaired of the brcak break in front of itea melaina Mc Me laina Lains witness was notified on saturday evening ci aning and lie he forthwith forthm ith put up a post I 1 a t to warn folks and then on oil monday afternoon tile leal lek was stopped to mr kimball witness wae wita sure ho put up tip the eftick for a w warning arang halit cit cither ter 0 on n saturday or on sunday joseph saunders dera testified lo 10 having 11 seen se n mr goodale at work an on the break reak M witness who was deputy debic alty street supervisor awas was not notified that ilia was as out of repair in aw 1885 mr W illiam william driver dm er was called in october mr driver was thair chair ra an of ilia street committee he lie rec received c I 1 ved I 1 no notice tice that third street w va as out oil t of repair and a nd knew nothing of tile I 1 injury anju to mr Il hopkins I 1 horse until t tho I 1 to aill bill of damages was presented to the council to mr kimball birum goodale had charge of the water works fit in 1885 and was subject to the tile direct direction ibn of the council in in regard to ins his duties mr goodale w was as recalled and stated that he lie kept 41 record of hie his work each day during 1885 ile wai not ifield of the breakage in front of dr andersons and ind filled it immediately in answer to mr tanner mr hiop kina kills sa said id h he e never nc cr opened ins his storo store on sunday to mr air kimball witness presented his bill to tho council about one month after the accident occurred this cloI clofed ed the ter testimony in in the case |