Carson v. City of Hastings

• Decision Date: 21 May 1908
• Docket Number: 15,213
• Parties: GEORGE C. CARSON, APPELLEE, v. CITY OF HASTINGS, APPELLANT
• Court: Nebraska Supreme Court

116 N.W. 673

81 Neb. 681

GEORGE C. CARSON, APPELLEE, v. CITY OF HASTINGS, APPELLANT

No. 15,213

Supreme Court of Nebraska

May 21, 1908

APPEAL from the district court for Adams county: ED L. ADAMS, JUDGE. Affirmed.

AFFIRMED.

W. F Button, for appellant.

John C Stevens, contra.

DUFFIE C. EPPERSON and GOOD, CC., concur.

OPINION

DUFFIE, C. J.

The plaintiff was injured by falling into an open and unguarded cellar-way located on Lincoln avenue in the city of Hastings, Nebraska. In an action brought against the city to recover for his injuries he alleges notice to the city of the time when, and the place where, the injury occurred, in the following language: "This plaintiff further alleges that within 30 days of the injury complained of herein he gave to the clerk of the city of Hastings, Nebraska, a written notice, setting forth the injury complained of, with a statement of the nature and extent thereof, and of the time when, and the place where, said accident occurred, which statement and notice was received by the clerk of the city of Hastings, Nebraska, the defendant herein; that a copy of the notice left with and served on the city clerk as above set forth is hereto attached and marked 'Exhibit A,' and the same is hereby made a part of this petition as fully as though it were set out herein verbatim." The notice, omitting the verification attached thereto, is as follows: "Claim of George C. Carson against the City of Hastings. State of Nebraska, Adams County, ss: George C. Carson, being duly sworn, deposes and says that he is now, and has been upwards of 17 years, a resident and citizen of the city of Hastings, Adams county, Nebraska; that on the 10th day of December, 1904, while returning to his residence from his place of business, he was injured because of an excavation permitted to exist on a street of the city of Hastings, designated and known as Lincoln avenue; that said avenue is a public thoroughfare located in said city and maintained by said city, and that claimant was thereby induced to pass over the same, believing that there was no danger in so doing; that the city was negligent in this, that it permitted the owner of the building adjacent to the street to maintain an open cellar-way, into which, because of the darkness of the night and the absence of light, claimant fell, and was injured as hereinafter set forth; that claimant's face was badly bruised, his eyes and nose injured; that the injury to claimant's nose is, in his opinion, of permanent character; that he received injuries, because of the fall, to his head and back, which claimant believes to be permanent; that, because of said injury, claimant has been unable to follow his vocation up to the present time, and believes that he will be unable to obtain a position similar to the one he occupied, and the only one in which he is skilled to discharge the duties thereof; that claimant, prior to said injury, was receiving $ 12 a week for his services; that, because of his injuries received as above set forth, and the permanent character thereof and loss of time, claimant is damaged in the sum of $ 5,000. George C. Carson, By John C. Stevens, his Atty." A general demurrer was interposed to the petition, which was overruled by the court; whereupon the city filed an answer, and a trial to the jury resulted in a verdict for the plaintiff. Defendant has appealed.

Section 8538, Ann. St. 1907, in force at the time of plaintiff's injury, provides: "No city shall be liable for damages arising from defective streets, alleys, sidewalks, * * * within such city, unless actual notice in writing of the accident or injury complained of, with the statement of the nature and extent thereof, and of the time when and the place where the same occurred shall be proved to have been given to the mayor or city clerk within thirty (30) days after the occurrence of such accident or injury." In Schmidt v. City of Fremont, 70 Neb. 577, 97 N.W. 830, we held that physical incapacity on the part of the injured party did not excuse giving the notice required by this statute, and that in the absence of the notice no recovery against the city could be had. The reasoning upon which this holding is based need not be repeated here, and we need only inquire whether the paper attached to plaintiff's petition as exhibit A, and referred to as the notice given the city, is sufficient to comply with the requirements of the statute.

The plaintiff insists that he was only required to allege in his petition that written notice of the time and place where the accident occurred was given the city, and that no copy of such notice was required to be attached to his petition, and that because of this the court should disregard the exhibit attached, and should dispose of the case as though the form and contents of the notice had not been referred to in his petition. In Pefley v. Johnson, 30 Neb. 529, 46 N.W 710, it is said: "The facts on which a plaintiff bases his right to recover should be stated in a systematic and orderly manner, and not by making a mere exhibit a part of the petition. An exhibit, however, if made a part of a petition, is to be considered, and if the facts therein stated, in connection with those in the petition proper, show a liability of the defendant to the plaintiff, a demurrer that the facts stated therein are not sufficient cannot be sustained." This holding was approvingly quoted in Hudelson v. First Nat. Bank, 51...