MRS. BARRON, the appellee, got hurt on Thirty-Fourth avenue, in the city of Denver, on the first of March, 1892. It appears from the proof that prior to that time a sewer had been laid along the alley between Franklin and Humboldt streets where they cross Thirty-Fourth avenue, and had been continued in its course probably across the avenue. On the evening of the day in question, and a little after dark, or thereabouts, Mrs. Barron, with her two children, was driving along the avenue towards home. When she got to the point where the sewer crossed the avenue, the horse suddenly plunged into a hole, or the dirt gave way with him, and, in his fright and struggles to get out of the difficulty, Mrs. Barron was thrown over the dashboard, which broke under her weight. Her back struck the wheel, whereby she was very much frightened and quite severely burt. The horse started to run, but evidently was not very violent in his efforts, because he was soon caught by the motorman of a passing car, and the horse and phaeton were put in charge of a passerby and sent home. Mrs. Barron was able to be up for a day or so, when she was compelled to take to her bed, and was under the care of a physician for some days. All of her injuries were not very clearly defined, though one of her principal contentions which the evidence tended to support was that she was enciente, and within three or four days of the time had a miscarriage. These facts were proven on the trial over the objection of the counsel for the city.

To protect her rights in the premises as required by the charter, she served a notice on the mayor in the following language:

"You will please take notice that on Tuesday, the 1st day of March, A. D. 1892, Mrs. Lulie Barron, the wife of W. W. Barron, residing at 3444 Gilpin street, in the city of Denver, was severely injured by reason of a defect in Thirty-Fourth avenue at the point where the sewer recently laid by the city crossed said avenue, between Franklin and Humboldt streets, the said injury having occurred in the following manner, so far as we have been able to ascertain :

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"Mrs. Barron was driving along said avenue with a horse and phaeton, when, directly over the place where the sewer had been laid, the ground gave way beneath the horse and he sank in several feet; he plunged out and started to run, and the phaeton, by reason of the sinking and the plunging of the horse, was nearly upset, and Mrs. Barron thrown over the dashboard and against the front wheel; she clung to the lines, and the horse was stopped within half a block. Her two children were in the phaeton, but, aside from a severe fright, were uninjured. Mrs. Barron was severely injured internally, was in bed for a period of ten days, and is now in the care of a physician, and will probably never entirely recover from the effects of her fright and injury.

"The city had notice and ample knowledge of the defective and wretched condition in which the ground over the sewer had been left in that locality, and took no steps to remedy it.

"Mrs. Barron proposes to hold the city responsible for whatever damages she has sustained by reason of the above injuries."

During the progress of the trial, objection was made to the introduction of much of the testimony on the ground of the insufficiency of this notice. The charter provision is found in section 4, and is:

"Before the city of Denver shall be liable for damages to any person injured upon any of the streets, avenues, alleys or sidewalks of the city, the person so injured, or some one in his behalf, shall give the mayor or city council notice in writing of such injury within thirty (30) days after the same have been received, stating in such notice WHEN, WHERE AND HOW THE INJURY OCCURRED AND THE EXTENT THEREOF."

Mr. A. B. SEAMAN and Mr. LOUIS K. PRATT, for appellant.

Messrs. THOMAS, BRYANT & LEE, for appellee.

Mr. W. P. HILLHOUSE, of counsel.

BISSELL, P. J., delivered the opinion of the court.

The arguments and the record suggest but two matters to be determined. The first relates to the contents of the notice which was served on the mayor, and the second springs from the contention that there is no necessity for a notice at all, because of the unconstitutionality of the legislation which provides for it. Disposing of these matters in their inverse order, we will first consider the alleged unconstitutionality of the act of the legislature. Our discussion will consist of nothing but the simple suggestion of the matters on which we rest our opinion. If the question be in any wise involved in the litigation, the appellee can procure a review of our judgment by taking her case to the supreme court, which is the final arbiter of all constitutional questions. There would seem to be no room for discussion. Section 5 of article 25 of our constitution, which is said to be infringed by that provision of the charter of Denver regarding notices, has been frequently construed by the supreme court, and every question and argument suggested by counsel seems to be wholly disposed of by those decisions. It is a fact familiar to all lawyers in the state that the original charter which incorporated the inhabitants of Denver was passed by the territorial legislature of 1861. The present charter is but the crystalized form which it has assumed under the various enactments of subsequent legislatures. The first charter in terms provided that the inhabitants should be an incorporation which might sue and be sued and plead and be impleaded in all courts of law and equity. That original provision remained in all the charters down to the last, and is in substance found therein. The appellee insists, under the authority of the City of Denver v, Dunsmore, 7 Colo. 328, that the right to sue the city was a part of the common law of this jurisdiction, and was not derived from the permissive legislation which chartered the city. This question was not set at rest by that opinion.

What that court decided was that by virtue of the principles of the common law, which were a part of the law of the state, a municipality would be responsible for its torts committed in the negligent performance of its duty in caring for the streets. Although the case undoubtedly held that a city would be liable for negligence in the exercise of its powers over the highways, the court did not undertake to decide, nor do we, whether legislation providing a remedy was necessary to entitle an injured party to secure redress for such injuries. It was wholly unimportant, because the very act of incorporation provided that the city might both sue and be sued. The court assumed, as we do, that the only question for consideration was whether specific legislation was necessary to make the city liable for such torts. It is conceded that the charter provision requiring notice was added to the organic law of the municipality by an amendment passed long after the grant of the original charter, which preceded the adoption of the constitution. It has been held that the constitution did not affect prior legislation, and, of course, such a decision eliminates every question except the naked one whether this particular amendment was germane to the general purposes of the enactment, and whether such an amendment could be made without infracting that particular section of the article. As we said at the outset, we are thoroughly satisfied the matter has been settled by the supreme court, and under its decisions such an amendment must be taken to be both legitimate and proper, and no infringement of that article. Brown v. City of Denver, 7 Colo. 305; Carpenter v. The People, 8 Colo. 116; Rogers v. The People, 9 Colo. 450; People ex rel. v. Londoner, 13 Colo. 303; In re City of Denver, 18 Colo. 288.

The act being assumed to be constitutional, the only question left concerns the sufficiency of the notice. That the notice is an indispensable prerequisite to the maintenance of the suit was recently decided in this court at the present term in the case of The City of Denver v. Saulcey, 5 Colo. App. 420. The precise matters suggested by the present record were not

within the purview of that decision. As will be remembered, the act provides that the notice which is served must state when, where, and how, the injury occurred, and the extent of it. In passing upon the question of the sufficiency of the notice, it may be well to premise that the question of the sufficiency of the notice is one of law, and to be solely determined by the court. Chapman v. Nobleboro, 76 Me. 427; Rogers v. Shirley, 74 Me. 144.

Under this rule, we must ascertain whether the paper which was served on the mayor conformed to the requirements of the charter. The locus of the injury seems to us to be sufficiently described. There are cases, perhaps, which go to an extreme length in requiring an exact designation of the spot at which the injury was received, but we are referred to none which compel us to hold the notice deficient in this particular. Larkin v. City of Boston, 128 Mass. 521; Weber v. Town of Greenfield, 74 Wis. 234; Fopper v. Town of Wheatland, 59 Wis. 623.

The date was accurately given, and the only possible point of attack respects the way in which the injury was received and its extent. There are a good many cases which hold the plaintiff to a very great accuracy in stating how he was hurt. McDougall v. City of Boston, 134 Mass. 149; Dickie v. Boston & Albany R. R. Co., 131 Mass. 516; Noonan v. City of Lawrence, 130 Mass. 161; White v. Stowe, 54 Vt. 510; Wieting v. Town of Millston, 77 Wis. 523.

We do not believe that we depart from the spirit and principle evidently underlying these decisions when we hold this notice sufficient in that respect. The location was very definitely stated. It was given as the line of the sewer crossing Thirty-Fourth street at the alley between Franklin and Humboldt. Manifestly it would have been impossible for the city authorities to have been misled by this description. The only thing in the notice respecting the way in which the injury happened which admits of discussion is the statement "that the earth sunk under the horse, which occasioned his fright, and the ultimate injury to Mrs. Barron." The