City of Beatrice v. Reid

• Decision Date: 07 June 1894
• Parties: CITY OF BEATRICE v. REID.
• Court: Nebraska Supreme Court

41 Neb. 214

59 N.W. 770

CITY OF BEATRICE

v.REID.

Supreme Court of Nebraska.

June 7, 1894.

Syllabus by the Court.

1. An assignment of error as to the giving en masse of certain instructions will be considered no further than to ascertain whether any one of such instructions was properly given. Hiatt v. Kinkaid (Neb.) 58 N. W. 700, followed.

2. If one attempts to pass over a place of danger the law requires him to exercise caution commensurate with the obvious peril, but this means that the law only requires of the party to exercise ordinary care, the danger and his knowledge thereof considered.

3. Where a municipal corporation is vested by law with authority to construct a public improvement, and lets the building of such improvement to a contractor, to be by him constructed in such manner as is prescribed by the corporation, such contractor becomes, by virtue of such contract, the agent of the corporation, and it will be liable for an injury resulting from the negligence of such contractor in the manner of the construction of such improvement.

4. A municipal corporation is charged by law with the duty of at all tiimes keeping its streets and sidewalks in a reasonably safe condition for travel by the public.

5. No municipal corporation, by any act of its own, can devolve this duty on another, so as to relieve itself from a liability resulting from its failure to perform such duty.

6. A municipal corporation, by contracting with another to construct an improvement for it, does not and cannot thereby abdicate its control over the streets or public grounds of such corporation; nor thereby exonerate itself from liability for an injury resulting from the negligence of such contractor in the manner of the performance of his contract.

7. If a municipal corporation rightfully causes an improvement to be constructed, or other work to be done, whether by an independent contractor or otherwise, it is bound to take notice of the character of the work and its condition,--whether safe or dangerous; and is bound to take notice of the condition--whether safe or dangerous--of its streets and grounds, as affected by the prosecution or performance of such improvement or work.

8. City of Omaha v. Jensen, 52 N. W. 833, 35 Neb. 68, followed and reaffirmed.

9. The legal basis of the liability of a municipal corporation for an injury sustained by the negligence of an independent contractor constructing a public improvement for such corporation examined, and declared to be not necessarily based upon the doctrine of respondeat superior, but upon the doctrine that a municipal corporation, charged by law with the performance of a public duty, when sued for an injury for its failure to perform such duty, is estopped from alleging that it had delegated the performace of such duty to another, or had by contract exempted itself from liability for such injury resulting from its failure to perform such duty.

Error to district court, Gage county; Appelget, Judge.

Action by Anna Reid against the city of Beatrice. Judgment for plaintiff, and defendant brings error. Affirmed.

Geo. A. Murphy and W. C. LeHane, for plaintiff in error.

L. M. Pemberton, for defendant in error.

RAGAN, C.

Mrs. Anna Reid sued the city of Beatrice in the district court of Gage county for damages for an injury which she alleged she sustained through the negligence of the agents of said city. She had a verdict and judgment, and the city brings the case here for review. The testimony on behalf of Mrs. Reid, briefly stated, tends to establish the following facts: That in the year 1890 the city of Beatrice was a city of the second class, having more than 5,000 inhabitants. That in said year it entered into a contract with one McMahon in and by which he was to build and did build for said city a sanitary sewer. In the construction of this sewer, and for the purpose of settling the loose dirt thrown back into the sewer ditch, McMahon attached a gas or water pipe some 2 1/2 inches in diameter to a hydrant, and so laid the pipe as to have it discharge water into the sewer ditch. That said pipe crossed diagonally a public sidewalk on a public street of said city. That no guards, lights, or signals of any kind were erected so as to indicate to passers-by the presence of such pipe on said sidewalk. That in the nighttime of the 10th of August, 1890, Mrs. Reid was walking on said sidewalk, returning from a lecture. That she was not aware of the existence of said water pipe across the sidewalk, and in passing along she struck her foot or toe against said pipe, or her foot caught under said pipe, causing her to fall, and from which fall she received severe injuries. Mrs. Reid at this time was a large, fleshy lady, weighing 240 pounds. At the time of the trial, in June, 1891, her weight was reduced to 172 pounds. She underwent severe suffering caused by said fall. Was put to expense for medicine and physicians, and her health was permanently impaired. She earned her living by sewing, and had a family of two daughters depending upon her for support. On behalf of the city the testimony tends to show that it had no notice of the situation of the placing of the water pipe by McMahon across the sidewalk; that there were signal lights on the sewer ditch in the alley near by the point where the water pipe crossed the sidewalk; that just across the street from the water pipe was a high school building, on which was erected an electric light, some 50 feet from the ground; that these lights were sufficient to apprise a person in the exercise of ordinary care of the existence of the water pipe on the sidewalk; that Mrs. Reid was not permanently injured; that the condition of her health at the time of the trial was not the result of the fall on the sidewalk. There is no dispute in the record but that McMahon was constructing a sewer for the city, and in accordance with a contract let to him for that purpose, and that the placing of the water pipe across the sidewalk for the running of water into the sewer ditch was a necessary and proper act in the performance of his contract.

1. The first error assigned here by the city is: “The court erred in giving paragraphs of instructions Nos. one, two, three, four, and five asked for by the defendant in error.” In Hiatt v. Kinkaid (Neb.) 58 N. W. 700, it is said: “An assignment of error as to the giving en masse of certain instructions will be considered no further than to ascertain whether any one of such instructions was properly given.” Some of the instructions of which complaint is made stated the law correctly, and, since they were not all erroneous, the error assigned cannot be sustained.

2. The second assignment of error is the refusal of the court to give to the jury an instruction asked by the city, and numbered 8, as follows: “If the jury believe from the evidence that the place where the accident in question occurred was necessarily more dangerous than the ordinary streets and sidewalks, and that by the exercise of ordinary care and prudence this condition of things could have been known to the plaintiff, or was known to her, then the plaintiff was required to use more than ordinary care and caution to avoid the accident; and, if she failed to do so, and thereby contributed to the injury, she cannot recover in this suit.” This instruction was properly refused, for the reasons: First, that there is no evidence in the record that Mrs. Reid knew of the presence of this water pipe on the sidewalk prior to the time she fell over it; second, that the only degree of care that the law imposed upon Mrs. Reid was ordinary care. Had she been aware of the presence of the water pipe on the sidewalk, the law would have required her to exercise the caution of a reasonable and prudent person in passing over it; but that requirement would have amounted only to the exercise of ordinary care. If one attempts to pass over a place of danger, the law requires him to exercise caution commensurate with the obvious peril; but in doing so the care exercised would be only ordinary care, the danger and his knowledge thereof considered.

3. The third and fourth errors assigned are that the court erred in giving an instruction No. 3 asked for by the city as requested; and in modifying the instruction, and giving it as modified. We cannot review this error, if it was an error, for the reason that no exception was taken to the modification of the instruction by the trial court, nor did the city except to the giving of the instruction when modified.

4. The fifth error assigned is that the court erred in giving paragraphs of instructions Nos. 1, 2, 3, 4, 5, 6, and 7 of the instructions given on the court's own motion. We have examined these instructions, and find that some of them were correct, and should have been given; and, following the rule laid down in Hiatt v. Kinkaid, supra, and cases there cited, we have gone no further.

5. The sixth, seventh, and eighth assignments of error may be considered together. They are that the verdict is not sustained by sufficient evidence, that the amount of damages awarded by the jury to Mrs. Reid is excessive, and that the verdict and judgment are contrary to the law of the case. The amount of the judgment is $1,500, and it must suffice to say that we think the evidence warrants that amount in the case. We cannot quote the testimony further than has already been done, but it supports the finding of the jury that Mrs. Reid was injured, as alleged in her petition, through the negligence of the contractor of the city in placing and leaving the water pipe across the sidewalk without guards or signals. The argument of the council for the city, however, is that, as the work of constructing the...