Bowman v. City of Omaha

• Decision Date: 05 October 1899
• Citation: 80 N.W. 259,59 Neb. 84
• Parties: BOWMAN v. CITY OF OMAHA.
• Court: Nebraska Supreme Court

59 Neb. 84

80 N.W. 259

BOWMAN

v.CITY OF OMAHA.

Supreme Court of Nebraska.

Oct. 5, 1899.

Syllabus by the Court.

A municipal corporation is liable for the death of a child who was drowned in a pond of water situate in part on a public street and part on abutting lots, when shown that the accumulation of water was occasioned by the negligence of the city in filling in the street with earth, that no fence or barrier was erected, and that the child entered the pond from the street. City of Omaha v. Richards, 68 N. W. 528, 49 Neb. 244, followed.

Error to district court, Douglas county; Keysor, Judge.

Action by Fannie E. Bowman, administratrix, against the city of Omaha. Judgment dismissing the action, and plaintiff brings error. Reversed.Silas Cobb, for plaintiff in error.

W. J. Connell and E. H. Scott, for defendant in error.

NORVAL, J.

Fannie E. Bowman, as administratrix of the estate of Albert Bowman, deceased, recovered a judgment against the city of Omaha in the district court of Douglas county in the sum of $1,000, for negligently causing the death of her intestate. This judgment, on error proceeding brought to this court by the city, was reversed. City of Omaha v. Bowman, 52 Neb. 293, 72 N. W. 316. Subsequently the plaintiff filed an amended petition in the court below, to which a general demurrer was interposed by the city, sustained by the court, and the action dismissed. Error proceeding has been prosecuted by the plaintiff.

The sufficiency of the amended petition is the sole question presented. In the former opinion filed herein it was stated, as a reason why plaintiff could not recover, that it was not shown that her intestate went upon the pond in which he was drowned from Davenport street, and hence it could not be charged that the failure of the city to erect a barrier or fence between the street and the property abutting thereon, on which the pond was located, was the proximate cause of the boy's death. The amended pleading was doubtless framed to meet the objection to a recovery pointed out in the previous opinion, and we are constrained to hold that counsel for plaintiff in that regard has not been wholly unsuccessful. The amended petition alleges that “Albert D. Bowman came to his death through the negligence of the city of Omaha on the 15th day of June, 1892, by drowning in a pond of water, which negligence consisted in permitting the accumulation of said water, and in allowing said water to accumulate and be and remain, by the side of Davenport street, near Twenty-Eighth street, within the limits of the city of Omaha, as well as to remain beside of an alley next south of Davenport street, and running parallel...