City of Geneva v. Burnett

• Decision Date: 01 July 1902
• Citation: 65 Neb. 464,91 N.W. 275
• Parties: CITY OF GENEVA v. BURNETT.
• Court: Nebraska Supreme Court

65 Neb. 464

91 N.W. 275

CITY OF GENEVA

v.BURNETT.

Supreme Court of Nebraska.

July 1, 1902.

Syllabus by the Court.

1. A petition in an action for personal injuries that states facts and circumstances from which the inference of negligence by the defendant is inevitable is not defective for omitting the use of the word “negligent,” or its derivatives.

2. Under the proper precautions, and with necessary explanations, what are known as “X-ray pictures” are admissible in evidence for the purpose of showing the condition of the internal tissues of the body.

Commissioners' opinion. Department No. 3. Error to district court. Fillmore county; Stubbs, Judge.

Action by Mary E. Burnett against the city of Geneva. Judgment for plaintiff. Defendant brings error. Affirmed.J. D. Hamilton and Chas. H. Sloan, for plaintiff in error.

Robt. J. Sloan, for defendant in error.

AMES, C.

The defendant in error (plaintiff below) alleged in her petition that on the 12th day of December, 1898, she suffered personal injury from a loose board forming part of the structure of one of the sidewalks in the city of Geneva, and “that said board was lying loose across the stringers in said sidewalk; not being nailed to any of them. And that said board was loose, and that said sidewalk was in bad condition and repair, was well known to the mayor and council of said city, and to the officers whose duties it was to repair and oversee the same. And that for a long time previous to the 12th day of December, 1898, and ever since said date, the authorities above mentioned allowed said sidewalk to be and to remain in a dangerous condition.” A general demurrer was interposed to this petition, supported by the argument that it does not sufficiently allege that the city authorities were negligent with respect to the matter complained of. The demurrer was properly overruled. If the circumstances were such as the petition narrates, the inference of negligence is inevitable. The use of the word “negligence” would not have made the charge any more specific or emphatic. Its omission from the pleading, therefore, did not render the pleading defective. The answer denied “that the said walk was unsafe and dangerous, or that it had any notice of such defect in the walk, and that the defect, if any, which caused the injury, was latent and unknown to it, although it had used diligence in the premises.” This is an admission of the defect charged, coupled with a denial of notice and negligence. It is like a denial that a note is genuine, coupled with an allegation that, if genuine, it was obtained by fraud. A party cannot deny and confess and avoid the same cause of action in the same pleading. Dinsmore v. Stimbert, 12 Neb. 433, 11 N. W. 872. The answer also alleged that, if the plaintiff had suffered any...