About the year 1902 or 1903, the defendant company built its railroad through the town of Avondale. It ran along Avenue A, which was then an unimproved street, with only one or two houses, and ditches and gullies on both sides. Defendant’s franchise from the town required it to square up the sides and bottom, and construct concrete retaining, walls for the sides and bottom, of a certain ditch running along-said avenue, which supplied its natural drainage. The ditch had no connection whatever with defendant’s road, and its improvement as required by the town was of no special benefit to it, and was not in any sense a part of its roadway, nor appurtenant, to it. On the other hand, it was of special benefit to the town as a permanent improvement to prevent the washing away of the soil, and so to keep the street in better condition for the use of the public. Defendant did the work as required —completing it in two or three years — and it was ac*664cepted as satisfactory by the city. Thereafter defendant had nothing-to do with the ditch; there being neither any requirement nor any undertaking that it should •maintain it, or make its presence safe for the public who might use the street, which urns under the control of the town. The ditch is now about four feet wide and four feet deep, and it does not appear that in the construction of the retaining Avails its original Avidth or depth has been changed except incidentally for the purpose of uniformity.

(1) On these facts the defendant cannot be held liable to the plaintiff for either the construction or the maintenance of a nuisance, and the general affirmative charge was properly given for the defendant. In any vieAV of the case, the only liability would be upon the town for not guarding the sides of the ditch in some suitable manner. ■

The authorities cited by appellant to the effect that municipal authority to erect or maintain a nuisance on a public street is no bar to liability therefor are obviously not in point.

(2) If the trial judge had ruled on the ex-mayor’s statement that the toAvn accepted the work, it would have made no difference in the result. The objection that it was secondary evidence was, however, not well taken. It was a collateral matter, and the rule of primariness did not apply.

There is no error in the record, and the judgment Avill be affirmed.

Affirmed.