City of Lincoln v. Calvert

• Decision Date: 07 February 1894
• Citation: 39 Neb. 305,58 N.W. 115
• Parties: CITY OF LINCOLN v. CALVERT.
• Court: Nebraska Supreme Court

39 Neb. 305

58 N.W. 115

CITY OF LINCOLN

v.CALVERT.

Supreme Court of Nebraska.

Feb. 7, 1894.

Syllabus by the Court.

1. The duty ordinarily resting upon a city to maintain its streets and sidewalks in a reasonably safe condition for travel in the ordinary mode is remitted during the time occupied in making repairs or improvements.

2. But in such case the city is free from liability only for such obstructions or unsafe conditions as are reasonably necessary for the purpose of performing the work, and such as are maintained only for the time reasonably required for making such improvements.

3. And where a street is rendered unsafe for travel in the ordinary modes, by improvements in progress thereon, the city must exercise reasonable care to protect the public from the consequences of such unsafe condition.

4. While a city is liable only for injuries resulting from defects brought to its notice, or existing under such circumstances that ignorance of the defect amounts, in itself, to negligence, still, when the defect is caused by the direct act, order, or authority of the city, notice is necessarily implied.

5. In an action for injuries sustained from the defective condition of a street, caused by grading operations preparatory to paving, the court instructed the jury that it was the duty of the city to use reasonable care in keeping the sidewalk in a reasonably safe condition; and if the city failed so to do, and maintained a dangerous condition for a considerable time, it would be liable. Held erroneous for not stating the rule fixing the city's duty and liability as defined in the first, second, and third of the above paragraphs, and in charging the city for an unsafe condition maintained for a considerable time, instead of an unreasonable time.

6. The evidence examined, and held to conform to the allegations of the petition, and to be sufficient to sustain the verdict.

Error to district court, Lancaster county; Hall, Judge.

Action by Hensen Calvert against the city of Lincoln for personal injuries. Plaintiff had judgment, and defendant brings error. Reversed.Abbott, Selleck & Lane and N. C. Abbott, for plaintiff in error.

Leese & Stewart, for defendant in error.

IRVINE, C.

The defendant in error recovered a judgment of $2,000 and costs against the plaintiff in error because of injuries sustained by defendant in error through a fall occasioned, as he alleged, by the defective condition of a street.

1. The first assignment of error to be noticed is that there was a variance between the allegations of the petition and the proof. The allegations of the petition in regard to the manner in which the accident occurred are, briefly, as follows: That on the west side of Tenth street, between S and T streets, and extending beyond T street, there is a sidewalk; that, while plaintiff was walking along and upon said sidewalk at the southwest corner of Tenth and 1 streets, he fell down and into an excavation or cut negligently, willfully, and knowingly made and left by the defendant in the sidewalk at said point and place, causing plaintiff to fall across and upon a large curb or other stone by defendant negligently, purposely, and willfully left lying, at that point and place, against the bank of said cut or excavation; that said cut or excavation was knowingly and negligently made, and left so as to be dangerous and unsafe to persons walking along said sidewalk, a long time prior to the injury; and said sidewalk was knowingly, willfully, and negligently permitted to remain in said condition, and said stone knowingly, willfully, and negligently permitted to remain in a dangerous and unsafe condition to persons walking along said sidewalk; that the place where said sidewalk was defective and dangerous was about the edge and beginning of the crossing of Tenth and T streets, and the edge of said cut and excavation was in T street, occupying and filling all the space in T street at said point. The proof offered on the part of the plaintiff was that Tenth street extended north and south, T street crossing it at right angles. Both streets, at and near their intersection, had been graded, or were in process of grading, preparatory to paving, a cut being made at the intersection, estimated by different witnesses at from three to seven feet in depth. A portion of the sidewalk along T street at the southwest corner of the intersection had been removed, and along the sidewalk line a pathway had been cut or worn, inclining from the original surface of the ground towards the bottom of the cut in T street. Curbstones had been thrown along T street, but had not been placed in position. One of these, of considerable size, was left lying across this pathway. Its precise position seems to have been described by witnesses by some means of illustration, probably perfectly clear to the eye, but far from appearing clear upon the record. It would seem, however, that this stone lay at or near the bottom of the incline, and in a diagonal direction across the pathway. Upon the day of the accident, Calvert, who lived north of T street, walked south along Tenth street to the place of his labor, when, rain setting in, work was stopped, and he started to return home by the same route. When he reached the place where the sidewalk had been removed, he found that the rain had rendered the inclining pathway muddy and slippery. He took a long step or leap to reach the stone, alighted upon it, but, the stone itself being wet, he lost his footing, and fell, striking the stone in his fall, and sustaining an injury. The city construes the petition as charging that Calvert fell from the brink of the excavation into it, and upon the stone, and that the proof does not conform to those allegations. We think this construction of the petition too narrow and unwarranted. That might be the inference from some of the language of the petition, but, when all the allegations in regard to the condition of the street and the manner of the injury are taken together, we think the proof fairly conforms thereto. The language of the petition may be open to criticism for want of precision, but the pleader was not required to state his evidence, and a more precise...