Chaney v. Vill. of Riverton
| Decision Date | 31 January 1920 |
| Docket Number | No. 20702.,20702. |
| Parties | CHANEY v. VILLAGE OF RIVERTON. |
| Court | Nebraska Supreme Court |
Municipalities are by statute given control over the streets within the municipal boundaries, and become subject to the correlative duty of exercising due care to keep them free from such structural defects or obstructions, or such physical conditions in immediate connection with them as will impair their use or endanger those traveling upon them.
Where a platform is constructed by citizens upon a principal street of a village, for the purpose of holding thereon a public entertainment, and is so constructed as to be insufficient to sustain the crowd, and by reason thereof falls and injures a pedestrian upon the street, held that, as the platform had been constructed for several days and a sufficient length of time for the village authorities to be aware of its location and condition, it became the duty of the village authorities to abate it as a nuisance, and, having failed to do so, the village could be held liable for damages for the injury.
Under a statute, providing that a village shall not be liable for damages arising from “defective” streets unless within 30 days after the occurrence of the accident a notice in writing be filed with the village authorities, held that a platform, constructed in a village street and in such condition as to endanger pedestrians passing on the street, renders the street “defective” within the meaning of that statute, and that plaintiff, injured by reason of the fall of the platform, was required to give the statutory notice as a condition precedent to her right to sue.
Appeal from District Court, Franklin County; Dungan, Judge.
Action by Josie Chaney against the Village of Riverton, to recover for personal injuries. Judgment for defendant, and plaintiff appeals. Affirmed.Bernard McNeny, of Red Cloud, for appellant.
George J. Marshall, of Riverton, and George Losey, of Bloomington, for appellee.
Action for damages resulting from personal injuries. Verdict was rendered in favor of the plaintiff, and the court, notwithstanding the verdict, rendered judgment in favor of the defendant. From this judgment the plaintiff appeals.
On or about July 2 or 3, 1913, citizens of Riverton, a village of some 800 or 900 people, constructed a wooden platform upon one of the main streets of such village for the purpose of giving a Fourth of July entertainment thereon. The celebration was held on July 5, and, when crowds had gathered around and upon this platform, the plaintiff, who was passing by, saw her small boy on the platform, and approached to take him away. As she withdrew, the platform, being insufficient to support the crowd, collapsed and struck her, causing the injuries complained of.
Two questions are presented: Whether the facts stated are sufficient to fix a liability upon the village, and, if so, whether plaintiff's right to sue is barred by her failure to give written notice of her accident and claim for damages, as required by section 5194, Rev. St. 1913.
[1] Municipalities are by statute given control over the highways within their limits, and, under our decisions, become subject to civil liability for failure to perform the correlative duty of keeping them in repair and free from such obstructions and conditions as impair or make dangerous their use. The liability for failure to perform such duties arises by necessary implication from the privilege of control over the streets granted, and is therefore a liability statutory in its nature. Tewksbury v. City of Lincoln, 84 Neb. 571, 121 N. W. 994, 23 L. R. A. (N. S.) 282;Updike v. City of Omaha, 87 Neb. 228, 127 N. W. 229, 30 L. R. A. (N. S.) 589.
By section 5131, Rev. St. 1913, defendant was given control over its streets, and power to prevent and remove all encroachments and to prevent all games, practices, and amusements upon the streets likely to result in damage to any person or property. Under this power of full control conferred for the public good, the village was required to exercise due care in keeping its streets free from such structural defects or obstructions, or such physical conditions in immediate connection therewith, as would impair its use or endanger those traveling upon it. Bemis v. City of Omaha, 81 Neb. 352, 116 N. W. 31;City of Richmond v. Smith, 101 Va. 161, 43 S. E. 345;Parker v. Mayor and Council of Macon, 39 Ga. 725, 99 Am. Dec. 486;Bliven v. City of Sioux City, 85 Iowa, 346, 52 N. W. 246;McCollum v. City of South Omaha, 84 Neb. 413, 121 N. W. 438:
In the cases just above cited the condition produced by a brick wall of a building, after a fire, left standing next to the sidewalk and in danger of falling on those using the street; or a billboard in a weakened or decayed condition, standing so that it might be blown into the street; or a platform built in the street, such as the one in the instant case--was, in each case where involved, held to be a nuisance in connection with the street, and which the city was obliged to use due diligence in discovering and removing.
Such a duty it owes in its private or corporate capacity, and not in its governmental capacity. Those cases, therefore, having to do with a nuisance created upon the street by the active use of it, such as by riots, the shooting of fireworks or cannons, or by horseraces or coasting on the snow, are to be distinguished, for in such cases the nuisance has no structural connection with the street nor with the surrounding physical conditions, but is an unlawful proceeding upon the street which the city is called upon, in its governmental capacity, to prevent, and for failure to do so, since it acts in its governmental capacity, it is not held liable.
[2] The platform built upon the street, as is shown in the instant case, was an unlawful obstruction. It was one the village had no power to license had it tried. It was a nuisance in the street, and, under the circumstances shown, its presence and character must necessarily have been known to the village authorities. Nevertheless it was suffered to remain in violation of the positive duty of those village authorities to remove it.
The damage occurring to the plaintiff,...
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