City of Aurora v. Cox

• Decision Date: 05 February 1895
• Citation: 62 N.W. 66,43 Neb. 727
• Parties: CITY OF AURORA v. COX.
• Court: Nebraska Supreme Court

43 Neb. 727

62 N.W. 66

CITY OF AURORA

v.COX.

Supreme Court of Nebraska.

Feb. 5, 1895.

Syllabus by the Court.

1. A municipal corporation is bound to keep its streets in a reasonably safe condition for public travel.

2. Whether or not a city has failed to perform such duty is generally a question of fact.

3. A petition sufficiently charges negligence against a city when it alleges facts from which a person may reasonably infer that the street was not kept in a condition reasonably safe for public travel. It is not necessary, to state a cause of action, that such inference should be a necessary one from the facts alleged in the petition. It is sufficient if it be a reasonable inference.

4. Therefore, where a petition charged that a city, having more than 1.000 and less than 5,000 inhabitants, constructed a cross walk at one of the principal and most frequently traveled intersections, that said cross walk was constructed of brick and stone, and that some of the stones were placed so that they projected to a height of two inches above the general surface, held, that the petition in this respect stated a cause of action, and that a verdict founded upon evidence sufficient to establish such allegations was supported by the evidence.

Error to district court, Hamilton county; Smith, Judge.

Action by Margaret Cox against the city of Aurora. Judgment for plaintiff, and defendant brings error. Affirmed.A. W. Agee and Kellogg & Graybill, for plaintiff in error.

E. J. Hainer, for defendant in error.

IRVINE, C.

The defendant in error sued the plaintiff in error to recover for injuries sustained by defendant in error by falling on a street crossing which it was claimed had been negligently constructed. She recovered a verdict of $500, whereon judgment was rendered. The plaintiff in error relies on only two points to reverse the judgment: First, that the petition does not state a cause of action; and, secondly, that the evidence is not sufficient to sustain the verdict.

The point urged against the sufficiency of the petition is that the facts alleged as to the condition of the cross walk are insufficient to show that the city had failed to perform its duty of keeping the streets in a reasonably safe condition for public travel. It is not claimed that the petition is defective in any other particular. On this feature the petition alleged that the city had constructed cross walks at the intersections of its streets, among them at the intersection of Central avenue with Third street, which streets were among the principal and most frequently traveled in the city; that this cross walk “was constructed of stones and bricks, but the same was defectively, faultily, and negligently constructed, in that the surface of said cross walk was left very rough and uneven, and a large number of stones, of which said cross walk was constructed, were left projecting to a great, unusual, and dangerous height, to wit, two inches above the general level of said cross walk; that afterwards, and before the happening of the grievances herein mentioned, the defendant undertook to repair said cross walk, and in repairing said cross walk said defendant city caused a large number of bricks to be left lying loose upon the stones and general surface of said cross walk, and near the line thereof, which said construction and repairing made said cross walk uneven, difficult, and highly dangerous for foot...