PECKHAM, J.
A careful perusal of all the evidence in this case leads us to the conclusion that the plaintiff failed to make out a cause of action against the defendant, and that the defendant's motion for a non-suit should, therefore, have been granted.
The evidence, in substance, is that the dirt was brought to the street opposite the house of Mr. Franklin and was there unloaded and was then drawn in wheelbarrows into the yard belonging to him. There were three men engaged in wheeling it away most of the time. The dirt that was drawn to the street was thus being continually drawn away for the purpose of filling in the lot. At times it would seem that the dirt was drawn to the street faster than it was wheeled away, and in that manner it accumulated in size during the day. There was, however, no substantial proof that out of the three or four days upon which the drawing was done the dirt drawn on any one day to the street was not removed on that same day with the exception of the day preceding the night of the accident. There was no evidence that the defendant had any actual notice of the pile of dirt, and we are of opinion there is nothing in the evidence upon which to charge the city with constructive notice of the existence of an obstruction in the street at night. So far as hauling the dirt in the daytime to the street opposite Franklin's lot is concerned, there was nothing illegal or improper in that act. Franklin desired to fill in his lot, and to that end he wanted this dirt. It was unloaded at the spot most convenient for that purpose, and men were at once employed to wheel it to the lot, and so constructive notice to the city would be nothing more than notice that dirt was being drawn to a spot in a public street opposite the lot of an owner, and that such dirt was being drawn away by the lot owner and spread upon his lot. The act of Franklin in permitting the dirt to remain in the street on the night of the accident was not sufficient to charge the city with any negligence whatever. Under the circumstances there could have been no presumption that the dirt would be permitted to remain over night even if the city officers had seen it there during the day.
We think the plaintiff failed to prove the defendant guilty of any negligence, and the judgment against it must, therefore, be reversed and a new trial granted, with costs to abide the event.
All concur.
Judgment reversed.
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