Nebraska City v. Rathbone
| Citation | 29 N.W. 920,20 Neb. 288 |
| Parties | NEBRASKA CITY, PLAINTIFF IN ERROR, v. ANNIE RATHBONE, DEFENDANT IN ERROR |
| Decision Date | 27 October 1886 |
| Court | Supreme Court of Nebraska |
ERROR to the district court for Otoe county. Tried below before HAYWARD, J.
AFFIRMED.
John C Watson, for plaintiff in error.
The mere slipperiness of a sidewalk, occasioned by ice and snow not accumulated so as to cause an obstruction, is not ordinarily such a defect as will make the city liable for damages occasioned thereby. Stanton v. Springfield, 12 Allen, 566. Nason v. Boston, 14 Allen, 508. Cook v. Milwaukee, 24 Wis. 270. Ward v Jefferson, Id., 342. Cook v. Milwaukee, 27 Wis. 191. Chicago v. McGiven, 78 Ill. 347, 1875. See also Grossenbach v. Milwaukee (Wis.), 26 N. W. Rep., 182. Broburg v. Des Moines (Iowa), 19 N. W. Rep., 340. McKeller v. Detroit (Mich.), 23 N.W. Battersby v. New York, 7 Daly, 16. Urquhart v. Ogdensbury, 2 Amer. & Eng. Corp. Cas., 565 et seq. Broburg v. Des Moines, 4 Amer. & Eng. Corp. Cas., 627; S. C., 19 N. W. Rep., 340. Chicago v. O'Brien, 111 Ill. 532; S. C., 53 Amer. Rep., 640. Hill v. Fon du Lac, 53 Wis. 248; S. C., 14 N. W. Rep., 25. Stilling v. Thorp, 54 Wis. 537; S. C., 11 N. W. Rep., 906. Cloughessey v. Waterbury, 51 Conn. 405.
Frank T. Ransom, for defendant in error.
It is for the jury to determine how long a defect in a sidewalk must have existed to charge the city with constructive notice. Sheel v. Appleton (Wis.), 5 N. W. Rep., 27. Colley v. Westbrook, 57 Me. 181. Logansport v. Justice, 74 Ind. 378.
This action was brought by the defendant in error against the plaintiff in the district court of Otoe county to recover for personal injuries sustained by her from falling on a sidewalk in said city while said sidewalk was obstructed by snow and ice. A verdict was rendered in favor of the defendant in error and judgment was rendered thereon.
It is alleged in the petition that the defendant is a municipal corporation, a city of the second class duly organized under the laws of the state, and was such at the time of the accident hereinafter mentioned, and had full charge and control of the streets in said city.
That Main street is a public street in said city, duly laid, the grade thereof established, and is guttered and sidewalked, and is the principal street in said city.
That portion of said Main street, commencing with the line of the property thereon, and extending for a distance of twelve feet into and toward the center of the street, is set aside for sidewalks and sidewalk purposes, to accommodate persons traveling on foot on said street.
The west half of lot eleven, in block nine in said city, fronts upon said Main street and adjoins the line of said street on the north.
On the 3d day of January, 1885, and for a long time prior thereto, snow and ice had been allowed to accumulate upon the sidewalk in front of the said west half lot eleven in block 9, the said sidewalk being a part of said Main street, and the said accumulations of snow and ice had been allowed for such a length of time, and to such an extent, that the same formed obstructions thereon, and impeded travel over said sidewalk, ridges of snow and ice had been formed upon the said sidewalk, and rendered the said sidewalk dangerous and hazardous. The said formation of ice and snow, and the said obstructions had been allowed by defendant, and had been allowed and suffered to be and remain upon said sidewalk through the negligence of defendant, and the said sidewalk through the negligence of defendant had been allowed to become and remain dangerous to travelers passing over and across the said sidewalk.
On the said 3d day of January, the plaintiff was walking upon said Main street, to-wit, that portion thereof composing the said sidewalk and was using due care and caution, and entered upon the said dangerous sidewalk in front of the said west half of said lot eleven without being aware of the dangerous condition thereof.
By reason of the accumulation of ice and snow and the obstructions formed thereby, and without any fault or want of care on her part, plaintiff stepped and fell upon said sidewalk, in front of said west half of said lot eleven, and striking violently upon said ice and obstructions aforesaid, her arm was broken, her body was severely bruised, and she was injured internally, and as a result thereof she was confined to her bed for more than two months, and has been put to great trouble and expense for physician's and surgeon's services, and has suffered great pain and anguish, and has by reason of said injuries been rendered unable to do any manual labor, and unable to earn her living and sustain herself as she has heretofore been accustomed to do, to her damage in the sum of $ 5,000.
She presented her claim for damages for said injuries, with a statement of the circumstances attending the same duly verified as required by law, to the defendant, and its mayor and city council, and they refused to allow the same, or to pay the said claim. Whereupon she prays for judgment against defendant for the sum of $ 5,000 and costs of this action.
Thereafter the defendant filed an answer to said petition setting up the following defenses:
The defendant, in answer to the petition of the plaintiff, does not deny the allegations contained in the first, second, third and fourth paragraphs in said petition. Defendant denies each and every other allegation therein contained. Wherefore, defendants demand judgment for costs in this action expended.
A very large amount of testimony was taken in the case which need not be noticed at length. It tends to show the following facts: That on the 3d of January, 1885, the plaintiff below was walking on a sidewalk on Main street in said city, at or near a place called Merit Parlor, and fell, breaking her arm and sustaining other severe injuries; that for several days prior to that time snow had been falling, with some sleet, and that the sidewalks were slippery and unsafe. All the snow that had fallen during the storm seems to have been permitted to remain on the sidewalk except as...
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