Brotherton v. Manhattan Beach Improvement Co.

• Decision Date: 07 January 1897
• Docket Number: 6639
• Parties: ABIGAIL A. BROTHERTON, ADMINISTRATRIX, v. MANHATTAN BEACH IMPROVEMENT COMPANY
• Court: Nebraska Supreme Court

69 N.W. 757

50 Neb. 214

ABIGAIL A. BROTHERTON, ADMINISTRATRIX, v. MANHATTAN BEACH IMPROVEMENT COMPANY

No. 6639

Supreme Court of Nebraska

January 7, 1897

REHEARING of case reported in 48 Neb. 563. Judgment below reversed.

REVERSED.

B. G Burbank, for plaintiff in error.

Gregory Day & Day, contra.

OPINION

RYAN, C. J.

There has been filed in this case an opinion, which was reported in 48 Neb. 563. A rehearing was afterward granted, and from this it results that it has again been presented for our further consideration. It is unnecessary to restate the facts involved, for they were very fully and accurately stated in the opinion above mentioned.

Counsel for the defendant in error, in their brief for rehearing, say there is only one point to which they wish to invite attention, and this they state in the following language: "It seems to us clear that the court overlooked the fact that the plaintiff's testimony failed to establish that the deceased was accidentally drowned under such conditions that the jury could have found, from the facts of the case, that in the exercise of ordinary diligence the defendant could have prevented the death complained of. The second ground in the motion brings up substantially, if not the same question, a question germane to this. " After stating the substance of the holding in Cooper v Central R. Co. of Iowa, 44 Iowa 134, the language of the aforesaid brief was as follows: "That is to say, that no liability for negligence can be charged to a party unless he could have been shown, or it could have been presumed from what was shown, that in the exercise of reasonable care he could have prevented the injury complained of. On page 19 of the transcript N. M. Campion testified of missing the deceased, and the facts to which he testified with reference to the same disclose all that was known of the alleged drowning. What we contend for is that nobody could have known the locality where the body could have been found had it been required of the defendant to have had a man in a boat watching for the deceased to prevent accident. There is nothing to show that the utmost diligence which the defendant could so use in that respect would have enabled the recovery of the body in time to have secured resuscitation. That is to say, that in going down under the water, whether he did it by plunging or by sinking, whether by struggling under the surface he had moved at a distance from where he disappeared of eight, ten, or fifteen feet, rests absolutely on conjecture. Now, before the jury could be satisfied in law in finding for the plaintiff, it must have been made to appear that in the exercise of reasonable care the body of the deceased could have been recovered and resuscitation produced." This extended quotation, which summarizes the contentions on behalf of the defendant in error, presents one general proposition, and that is that there was no evidence from which the jury would have been justified in finding that by the exercise of ordinary diligence the defendant could have prevented the death complained of. The application of this principle was limited to the possibility of finding the body before life is extinct, and thereupon producing resuscitation. This, standing alone, was not the proposition of special importance in the opinion heretofore filed. A very careful re-examination of all the evidence has convinced us that no fairer summary of the salient features of this case can be formulated than is contained in the said opinion, and, acting on the principle of letting well enough alone, we reproduce the following language: "It is...