¶1 dissenting. I do not concur in the preceding opinion. Plaintiff’s exception to the nonsuit should be sustained.
¶2 The undisputed evidence establishes these facts: Plaintiff, while walking on a concrete sidewalk on Pearl street near Broad street in a thickly settled part of the city of Providence, slipped on some ice near the center of the sidewalk, fell and suffered serious injury. The sidewalk — nine feet in width — sloped downward from a fence at the inside of the sidewalk to the curb. It appears that a long time before this accident occurred a certain place in the center of the sidewalk had sunk in thereby creating á hole irregular in shape with rough edges. One witness testified that in the summer preceding the time of the accident, while walking on this part of the sidewalk, he “happened to step on the ridge (of the hole) with his heel”; that “he went down with the heel, having the right side' of the right heel on that ridge, the left side down in thát hole, the rest of the foot on the other side”; his ankle was “bent” but he succeeded in saving himself from falling.
¶3 The trial justice viewed the hole. It was ten inches long and six and three-quarter inches wide with a depth varying from three-quarters to one and one-quarter inches. Said justice states that at the view of the premises he and some of the jurors “put their feet into this depression”; that he failed to find it interfered with his walking in any way and in his opinion the depression was not sufficient to justify a finding that it was a defect in the sidewalk. In making this ruling the trial justice took upon himself the function of the jury. In Quinn et ux. v. Stedman, T. T., 50 R. I. 153, it was argued that the defect established was so trivial that no danger therefrom ought reasonably to have been anticipated by the town. We held that the trial justice did not err in submitting this question to the jury.
¶4*220 Without further reference to other descriptive evidence, in my opinion the trial court was not justified in ruling as a matter of law that there was no evidence that this sidewalk was in a defective condition. Several days before the accident it had rained; surface water and water from the adjacent land had run into this hole where it remained; when the weather became cold, the water naturally turned into ice. There was no snow or ice elsewhere on the sidewalk. Without the hole there would have been no ice. This hole and the ice covering it are the proximate and concurring causes of the accident.
¶5 The leading case in this State on this class of cases is Hampson v. Taylor, 15 R. I. 83, which was decided in 1885. In that case a traveler on a street in Bristol was injured by slipping and falling on the street in a place which was washed and gullied, with cobblestones left exposed in the gully. The street was covered with a thin film of ice caused by rain falling and freezing the previous night. A verdict for plaintiff was sustained. Defendant excepted to the following instructions given to the jury: “If the sidewalk where the accident happened was so defective as to render the town liable in case an accident had happened by reason of the defect in the absence of the obstruction caused by the ice, and this accident happened by reason of such defect and would not have happened but for it, then the town is liable, even though the ice was one of the proximate causes.” This exception was overruled. The court, speaking through Durfee, C. J., after considering cases cited, chiefly from Massachusetts and Maine, which hold that an action will not lie when the injury is not the result solely of the defect but of the defect and another cause for which the town is not liable concurring with it, declined to approve such a rule. The court then declared the rule of law which has since been consistently followed in numerous cases, reported and unreported, that when two causes combine to produce the injury both in their nature proximate the one being the defect in the highway and the other some *221 occurrence for which neither party is responsible, the municipality is liable, provided the injury would not have been sustained but for the defect in the highway. Also that it was the duty of the town in making and mending its highways to consider the natural effects of rain and snow and ice as affecting the safety of travel thereon, except so far as the statute exonerates them from duty in that regard.
¶6 The rule established in Hampson v. Taylor, supra, is sound in principle and in accord with the better authorities. Unless the Hampson case is to be disregarded or overruled the granting of the nonsuit was erroneous.