Am. Waterworks Co. v. Dougherty

Decision Date29 June 1893
PartiesAMERICAN WATERWORKS CO. v. DOUGHERTY.
CourtNebraska Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. Issues as to the existence of negligence and contributory negligence, and as to the proximate cause of an injury, are for the jury to determine, when the evidence as to the facts is conflicting, and where different minds might reasonably draw different inferences as to these questions from the facts established.

2. In an action for personal injuries, mental suffering and anxiety caused by a physical injury is an element of damage, whether or not the injury was due to the willful act of the defendant.

Commissioners' decision. Error to district court, Douglas county; Clarkson, Judge.

Action by Frank Dougherty against the American Waterworks Company. Judgment for plaintiff. Defendant brings error. Affirmed.John L. Webster, for plaintiff in error.

Isaac Adams, for defendant in error.

IRVINE, C.

The defendant in error, Frank Dougherty, recovered judgment against the plaintiff in error in the sum of $500, for injuries sustained by defendant in error by being thrown into a trench excavated by plaintiff in error in Sherman avenue, in the city of Omaha, and alleged to have been left without proper guards or precautions against accident. To reverse this judgment, the plaintiff in error brings these proceedings.

The plaintiff in error was operating a system of waterworks in the city of Omaha, and possessed by ordinance the right to occupy streets in that city with its mains, and to make openings and excavations in such streets for the purpose of laying and repairing such mains. A general ordinance of the city in relation to the laying and repairing of water, sewer, and gas pipes provided as follows: “Red lights shall be kept around all unfinished work at night, and fences or other suitable and sufficient barricades against accidents shall be placed around excavations at all times.” On the day preceding the accident, the plaintiff in error had opened a trench on Sherman avenue, running lengthwise of the street, which was north and south, some 6 or 8 feet from the west curb. This trench was from 16 to 20 feet long, about 4 feet wide, and 7 feet deep. About 7 o'clock, and after it had grown dark, Dougherty started from a point on Sherman avenue, about a mile north of the excavation, driving two horses attached to a wagon. He was seated upon a board laid across the side boards of the wagon. He started from a saloon, and the evidence shows that he had been there some time, and had partaken of intoxicating beverages, but upon this point it is very doubtful whether the evidence would have been sufficient to have sustained a finding that he was intoxicated. He was accompanied by two men, driving one horse attached to a buggy. Dougherty drove down the west side of the street; the two men referred to, upon the east side. They were driving at a somewhat rapid rate; and remained so close together that they were enabled to converse as they drove along. When the excavation was reached, the two men in the buggy being a short distance ahead, Dougherty's horses both plunged into the excavation, and Dougherty was thrown either into the trench, or upon the ground at the side thereof, sustaining the injuries to recover for which the action was brought.

The principal error assigned is that the verdict is not supported by sufficient evidence, and it is argued upon this assignment, in the first place, that there is no evidence of negligence on the part of the waterworks company causing the accident, and, secondly, that the evidence discloses contributory negligence on the part of Dougherty. The evidence in regard to the condition of the excavation is conflicting. That introduced on behalf of the company tends to show that when work ceased, about 6 o'clock, the earth removed from the excavation had been piled up along each side and across each end of the ditch, to a height varying from 1 1/2 to 3 feet; that at each end there had been thrust into the loose earth a stick from 3 to 5 feet in length, and to the top of each stick was...

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8 cases
  • Omaha Street Railway Company v. Craig
    • United States
    • Nebraska Supreme Court
    • March 6, 1894
    ... ... V. R. Co. v ... Brady , 39 Neb. 27, 57 N.W. 767; Missouri P. R. Co ... v. Baier , 37 Neb. 235, 55 N.W. 913; American ... Waterworks Co. v. Dougherty , 37 Neb. 373, 55 N.W. 1051; ... Union P. R. Co. v. Porter , 38 Neb. 226, 56 N.W ... 808.) The rule is, we think, just and ... ...
  • Hartwig v. Oregon Trail Eye Clinic
    • United States
    • Nebraska Supreme Court
    • June 19, 1998
    ...163 Neb. 646, 80 N.W.2d 877 (1957); Omaha Street R. Co. v. Emminger, 57 Neb. 240, 77 N.W. 675 (1898); American Water-Works Co. v. Dougherty, 37 Neb. 373, 55 N.W. 1051 (1893). In Baylor v. Tyrrell, supra, we made clear that the longstanding rule in Nebraska is that where a physical injury ha......
  • Omaha St. Ry. Co. v. Craig
    • United States
    • Nebraska Supreme Court
    • March 6, 1894
    ...642, 54 N. W. 976; Railroad Co. v. Brady, 37 Neb. ___, 57 N. W. 767;Railway Co. v. Baier, 37 Neb. 235, 55 N. W. 913;Waterworks Co. v. Dougherty, 37 Neb. 373, 55 N. W. 1051; Railroad Co. v. Palmer, 37 Neb. ___, 56 N. W. 957. The rule is, we think, just and reasonable, and in harmony with the......
  • Omaha & Republican Valley Railway Company v. Morgan
    • United States
    • Nebraska Supreme Court
    • May 15, 1894
    ... ... It ... is next urged that young Morgan was guilty of such ... contributory negligence as precludes his recovery. In ... American Waterworks Co. v. Dougherty , 37 Neb. 373, ... 55 N.W. 1051, the doctrine of this court on the subject of ... contributory negligence is thus stated: "Issues ... ...
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