City of Aurora v. Cox
| Decision Date | 05 February 1895 |
| Docket Number | 5042 |
| Citation | 62 N.W. 66,43 Neb. 727 |
| Parties | CITY OF AURORA v. MARGARET COX |
| Court | Nebraska Supreme Court |
ERROR from the district court of Hamilton county. Tried below before SMITH, J.
AFFIRMED.
A. W Agee and Kellogg & Graybill, for plaintiff in error, cited: 2 Dillon, Municipal Corporations, sec. 1006; City of Aurora v. Pulfer, 56 Ill. 270; Raymond v. City of Lowell, 6 Cush. [Mass.], 524.
E. J Hainer, contra:
Two things must occur to support the action: (1) An obstruction or defect in the crossing by fault of the city; (2) no want of ordinary care to avoid it on the part of plaintiff below. (Buswell, Personal Injuries, sec. 164.)
By ordinary care is meant ordinary prudence, and this does not require a traveler to look far ahead for obstructions or defects which ought not to be suffered to exist.
A traveler has a right to assume the safety of a public way or sidewalk, and is not bound to be on the lookout for expected danger therein. (Jennings v. Van Schaick, 108 N.Y. 530; Osborne v. City of Detroit, 32 F. 36; Gordon v. City of Richmond, 83 Va. 436.)
Anything in the condition of the crossing which makes it unsafe or inconvenient for ordinary travel is a defect or want of repair. (Buswell, Personal Injuries, sec. 174.)
A plank projecting above the level of the way at a crossing is an actionable defect. (Winn v. City of Lowell, 1 Allen [Mass.], 177.)
A person traveling in a public street in the exercise of ordinary care has a right to be absolutely safe against accidents arising from obstructions or imperfections in the street. (City of Lincoln v. Walker, 18 Neb. 244.)
The repair of the crossing shortly after the injury is evidence that it was improperly constructed or out of repair. (Osborne v. City of Detroit, 32 F. 360.)
Where a town officer to whom notice may be given created a defect, notice is unnecessary. (City of Lincoln v. Calvert, 39 Neb. 305; Buck v. Biddeford, 82 Me. 437; Holmes v. Town of Paris, 75 Me. 559.)
It is the duty of a city to keep its streets in a reasonably safe condition. (Blyhl v. Village of Waterville, 58 N.W. [Minn.], 817.)
The condition of the crossing, as alleged in the petition and shown by the testimony, was such as to render the city liable. (Sawyer v. City of Newburyport, 157 Mass. 430; Chilton v. City of Carbondale, 160 Pa. St., 463; Lichtenberger v. Town of Meriden, 58 N.W. [Ia.], 1058; Pool v. City of Jackson, 23 S.W. [Tenn.], 57; Patterson v. City of Council Bluffs, 59 N.W. [Ia.], 63.)
A statement of the case appears in the opinion.
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 passengers and other persons passing along, over, and across said cross-walk." The petition further alleged that the defect was known to the city and that Mrs. Cox, in passing along said walk, struck her foot against one of the projecting stones and was thereby thrown down, sustaining the injury complained of. The rule is settled that the measure of the city's duty in such cases is to keep its streets in a reasonably safe condition for public travel. (City of Lincoln v. Smith, 28 Neb; 762; City of Lincoln v. Calvert, 39 Neb. 305, 58 N.W. 115.) This rule is not controverted by counsel on either side. The objection simply is that the allegations above referred to are insufficient to...
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