City of Lincoln v. Smith

• Decision Date: 18 February 1890
• Citation: 28 Neb. 762,45 N.W. 41
• Parties: CITY OF LINCOLN v. SMITH.
• Court: Nebraska Supreme Court

28 Neb. 762

45 N.W. 41

CITY OF LINCOLN

v.SMITH.

Supreme Court of Nebraska.

Feb. 18, 1890.

Syllabus by the Court.

1. A city is required to use all reasonable care and supervision to keep its streets and sidewalks in a reasonably safe condition for travel in the ordinary modes of travel; and, if it fail to do so, it is liable for injuries sustained in consequence of such failure, provided the party injured was exercising reasonable care.

2. To render a municipal corporation liable for injuries caused by a defective sidewalk, it is not necessary that it should have had actual notice of the defect. If a state of facts exist that such ignorance can only arise from a failure to exercise reasonable official care, notice will be presumed.

3. The care and diligence required of a city in keeping its sidewalks in a reasonably safe condition for travel is not affected or varied by the number of miles of sidewalk therein.

4. The fact that a defect in a sidewalk is concealed by recently fallen snow does not release the city from liability.

5. The Carlisle tables of expectancy of life were properly admitted in evidence.

6. Instructions given to a jury must be construed together, and if, when considered as a whole, they properly state the law, it is sufficient. Bartling v. Behrends, 20 Neb. 211, 29 N. W. Rep. 472.

7. Instructions that have no evidence to support them should be refused.

8. It is proper to refuse instructions, the principles of which have already been fully presented to the jury.

Error to district court, Lancaster county; CHAPMAN, Judge.G. M. Lambertson and H. J. Whitmore, for plaintiff in error.

Selleck & Lane, for defendant in error.

NORVAL, J.

This action was brought by the defendant in error against the city of Lincoln to recover damages for injuries received by him by reason of a fall upon a sidewalk in said city, said fall being caused, as he alleges, by the defective condition of said sidewalk. In his petition, he alleges: “(1) That said city is a municipal corporation and city of the first class, having less than 60,000 inhabitants, and organized under, and by virtue of, the laws of the state of Nebraska. (2) That, as such municipal corporation, said city had the care, management, and control of the streets and sidewalks within said city, and had power and authority, and the necessary means, and that it was its duty, among other things, to keep said streets and sidewalks in good condition and repair, so that persons could, at all times reasonable and proper, walk over and along the same without danger of receiving physical injury therefrom. (3) That Sixteenth street, otherwise known as Grand avenue, is one of the principal streets in said city, and that the west side of said Sixteenth street, between Q and R streets, is near the business portion of said city, and at a place where there was much travel at and a long time prior to the time when the injury complained of by the plaintiff was received. (4) That, for a long time prior to the receiving of the injury complained of by the plaintiff, the sidewalk on the west side of said Sixteenth street, between said Q street and said R street, and more particularly in front of lot A, in block 32, of S. W. Little's subdivision in said city, was defective, and in a dangerous and unsafe condition for travel thereon, by reason of the uneven surface of said sidewalk caused by the removal of several planks from the same; that the said sidewalk was constructed of planks laid across wooden supports extending lengthwise of said sidewalk, to which supports the said planks were fastened by nails; that the nails of several of the planks in said sidewalk had been allowed to become and remain loosened; that the planks were thereby loosened, and some of them had been removed entirely from said sidewalk, thereby causing deep and dangerous holes in said sidewalk, which were concealed, and rendered extra hazardous and dangerous to travelers thereon; that the defendant city had actual and constructive notice of said defect, and, in not repairing the same, or so providing as to prevent or warn persons from passing over the same, was guilty of gross negligence and want of care. (5) That on the said 10th day of January, 1887, plaintiff was lawfully traveling on foot on said Sixteenth street, and on the sidewalk thereon, in the locality above described; and while so traveling on said sidewalk, and while in the exercise of ordinary care, and without any fault on his part, and without any warning, he not then seeing or knowing of the defect in said sidewalk, or of any defect whatever in the same, plaintiff stepped on the edge of the plank next to the place from which said planks had been removed, and, by reason of the absence of said planks from their proper place, he fell, and was thrown with great force and violence, backward onto said sidewalk, the small of his back striking across the edge of a plank of said sidewalk, whereby plaintiff was greatly and permanently injured in and about the small of his back, and was otherwise bruised, strained, and internally injured thereby; that by means of said injuries he has been totally disabled for doing manual labor of any kind whatever, and rendered an invalid for life, to his damage in the sum of $10,000. (6) That long prior to the filing of his petition, and within three months of the date of the injury complained of, plaintiff presented his said claim in writing, giving a statement of plaintiff's full name, the time, place, nature, and circumstances of the said injury, all in due form, as required by law, and filed the same with the clerk of said city; and the same was read at a meeting of the city council held a long time prior to the commencement of this action; and that defendant has wholly failed and neglected to allow said claim, or any part thereof.” The answer of the defendant city denies the defect, denies notice, and avers contributory negligence. The reply is a general denial of all allegations contained in said answer.

On the trial of said cause, it was stipulated by the parties (1) that the defendant city is a municipal corporation, as alleged in plaintiff's petition; (2) that Sixteenth street, beween Q and R streets, is one of the regularly laid out and platted streets of said city. There was a trial to a jury, with a verdict for the plaintiff for the sum of $1,500. The defendant's motion for a new trial was argued, considered, and overruled, and judgment was entered upon the verdict, to which the defendant duly excepted on the record, and assigns the following errors: (1) The verdict is not sustained by sufficient evidence; (2) it is contrary to law; (3) errors of law occurring at the trial; (4) in giving Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 of the instructions asked by plaintiff; (5) in refusing to give defendant's requests Nos. 2, 3, 5, 10, 11, 12, 13, 14, 15, 16, 18, and 19.

The first error complained of is that the verdict is not sustained by sufficient evidence. It is claimed that the evidence has failed to establish (1) that plaintiff has suffered a permanent personal injury, and that he is damaged thereby; (2) that said injury was caused wholly by a defect in the sidewalk; (3) that said defect was actually known to the city authorities long enough before the accident for them to have repaired it, or that it had existed for a sufficient length of time prior to the accident for the city authorities, in the proper exercise of their duties, to have discovered and repaired it.

The evidence shows that the plaintiff was the only person present when the injury was received, and his testimony describing how it occurred is uncontradicted. The plaintiff describes the manner in which the injury was received as follows: “I left home in the morning; I should judge, somewhere about 7 o'clock. I had been in the habit, when I came down town, of taking the street-car. When I came out to R street,--the R Street Line,--there was no car in sight, so I made up my mind I would walk; and I walked down, and I had been walking on a good walk. I was not in the habit of coming down town afoot; and, when I got to the corner of R and Sixteenth streets, I turned off on the west side of Sixteenth street, I should judge--I never measured the distance, but I should judge--between ten and fifteen feet on the west side of the street. I was walking along rather briskly, and there had been a light, dry snow, and it was snowing very light at the time, and blowing some, and drifting; and I was walking along. I am generally pretty sure-footed. I stepped on the edge of a hole in the walk, and fell over backward. My foot slipped into the hole, and I fell over backward. Question. Had you ever been over that walk before? Answer. Never. Q. You said you fell. How did you fall? A. I stepped with my left foot into the hole, and slipped into the hole, and fell over backward; struck the small of my back on the edge of the walk. * * * Q. Explain exactly how you fell into the hole. A. The stringers of the walk were running lengthwise, and the walk was short planks laid crosswise of the stringers. I will describe it to you so you will see. Say I was coming from the side here. I was going south, and here was a plank. I stepped on the edge of the plank, the same as there; and, the plank being gone in front there, which I didn't see, when my heel struck on the edge of the plank, here, it went into the hole, and I fell over backward; stepped with my left foot in the hole, and fell partially sideways, and struck my back against the outer edge of the plank. * * * Q. What part of your back struck on the edge of the walk? A. The small of my back, across the spine. * * * Q. Then, if I understand you correctly, you stepped with your heel on the edge of the walk, and your foot projected out over the hole? A. Yes, sir. Q. How did you fall? I mean, in what way; with force, or not? A. Yes, sir; I did. Q. About what was your weight at that time? A. 198 pounds....