City of Lincoln v. O'Brien

• Decision Date: 17 November 1898
• Citation: 56 Neb. 761,77 N.W. 76
• Parties: CITY OF LINCOLN v. O'BRIEN.
• Court: Nebraska Supreme Court

56 Neb. 761

77 N.W. 76

CITY OF LINCOLN

v.O'BRIEN.

Supreme Court of Nebraska.

Nov. 17, 1898.

Syllabus by the Court.

1. Any city charged with the duty of maintaining streets and sidewalks is liable for injuries sustained by travelers, exercising ordinary care, who are injured by the city's negligent failure to perform that duty.

2. The provision in Comp. St. c. 13a, § 67, subd. 6, whereby it is made the duty of realestate owners and occupants to keep sidewalks in repair, and making them liable for injuries caused by defective sidewalks, does not relieve the city from that duty, and consequent responsibility.

3. The various charter provisions of cities of the first class having more than 25,000 inhabitants, with regard to the maintenance of sidewalks, construed as imposing a direct liability upon the municipality for injuries from defective walks.

4. Comp. St. c. 13a, § 36, requiring that, to maintain an action against a city for an unliquidated claim, the party must file in the office of the city clerk, within three months from the time the right of action accrues, a statement giving, among other things, the place of the injury, requires that the statement must describe the place with such certainty that, from the description and inquiries suggested thereby, the place may, with reasonable diligence, be identified.

5. A notice under that section stated that the plaintiff was passing over the sidewalk on the north side of Q street, between Eighteenth and Twentieth streets, and “stepped into a hole in the sidewalk, which was in a bad state of repair.” Although a space of two city blocks was described, held, that the notice was good, as it stated that the sidewalk was in bad repair, and that plaintiff stepped through a hole therein, there being no proof that such conditions existed at more than one spot in the space described. No presumption of negligence at other places can be indulged to relieve the city from liability.

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

Action by Catherine O'Brien against the city of Lincoln. Judgment for plaintiff. Defendant brings error. Affirmed.

J. R. Webster, John P. Maule, and N. C. Abbott, for plaintiff in error.

Mockett & Polk and R. D. Stearns, for defendant in error.

IRVINE, C.

This action was by Catherine O'Brien against the city of Lincoln to recover for personal injuries by her sustained by reason of a defective sidewalk. She had a verdict and judgment, which the city seeks to avoid. The record distinctly presents two, and only two, questions: First. Is a city of the class to which Lincoln belongs liable in any event to one who suffers an injury from a defect in the sidewalk? Secondly. Was the notice served upon the city before bringing suit sufficient in its description of the place where the injury occurred?

The general duty of municipal corporations to maintain their streets, including the sidewalk space, in a reasonably safe condition for public travel, and their consequent liability for a negligent failure to perform that duty, has been often asserted. Among the more recent cases declaring the rule are: City of Lincoln v. Smith, 28 Neb. 762, 45 N. W. 41;City of Lincoln v. Calvert, 39 Neb. 305, 58 N. W. 115;City of Aurora v. Cox, 43 Neb. 727, 62 N. W. 66;City of Chadron v. Glover, 43 Neb. 732, 62 N. W. 62. The existence of this general rule is conceded, but it is asserted that it does not apply to the class of cities to which Lincoln belongs, and so far as concerns sidewalks, because the so-called charter, or act incorporating such cities, casts in express terms the duty of maintaining sidewalks upon the owners of abutting real estate, and so, by implication, at least, relieves the city from that duty. The question is therefore wholly one of statutory construction, and cases from other states are of little assistance in solving it. Lincoln is, and in 1894, when the injury to plaintiff occurred, was, a city of the first class, containing more than 25,000 inhabitants, and governed by Comp. St. c. 13a. The following provisions of that chapter are pertinent:

“Sec. 34. The mayor and council shall have the care, supervision and control of all public highways, bridges, streets, alleys, public squares and commons within the city, and shall cause the same to be kept open and in repair and free from nuisances.”

“Sec. 31. The street commissioner * * * shall, subject to the orders of the mayor, have general charge, direction and control of all work in the streets, sidewalks, * * * except matters in charge of the civil engineer,” etc.

“Sec. 67, subd. 6. The council shall have power to set aside a space designated as the sidewalk space, on each side of all streets and avenues, for sidewalks and the planting of trees and grass and may require and regulate the planting and protecting of the trees and grass, and the construction of sidewalks in such space. Such space shall extend from lot line to curb. Whenever any street or avenue shall have been brought to the established grade or permanently improved, the council shall require the owners of the real estate adjacent thereto, to bring the sidewalk space along or in front of such real estate to the established grade and to lay a sidewalk thereon of such width and materials as the council may determine; and in case such property owner shall refuse and neglect to cause such grading to be done or sidewalk constructed within thirty days after being notified in the manner prescribed by ordinance, the council may order said grading to be done and said sidewalk constructed, and assess the cost thereof against the real estate in front of which said work was done. Whenever any street or avenue shall have been brought to the established grade or permanently improved the council may require the owners of the real estate adjacent thereto to bring the sidewalk space along or in front of such real estate to the established grade and to lay a sidewalk thereon of such suitable material placed in such sidewalk space as the council may determine and shall have so ordered by proper ordinances. * * * And in case any such property owners shall refuse and neglect to cause such grading to be done or said sidewalk constructed within thirty days after being notified in the manner provided by ordinance, the council shall order said grading to be done and said sidewalks constructed in conformity with the ordinances regulating the same, and shall have power to take up and remove all walks not laid in conformity with such rules and regulationsas may be prescribed. And said council shall, at the beginning of each municipal year, receive bids for the erection of all sidewalks hereinafter to be laid or relaid as provided herein, and shall award therefor a contract to the lowest bidder for the year, and said contractor shall be required to lay or relay all sidewalks as ordered by the said council in accordance with the ordinances of said city, and the said contractor shall receive his pay for such work from the assessments against the real estate in front of which the said work was done; and that the cost of all such work, laying and relaying such walks in conformity with such ordinances shall be assessed against the real estate in front of which the said work was done. And the city treasurer of said city shall pay over to said contractor upon order of the council all assessments or special taxes against such real estate collected, together with the interest and penalty collected thereon, which shall in each case be full compensation to such contractor for any work so done under his said contract along and in front of any property upon which said assessment or tax shall have been collected. The council may by ordinance provide for the laying of temporary sidewalks upon the natural surface of the ground upon streets not brought to the established grade, and in case of refusal or neglect of (any) property owner in front of or along the side of whose lot such sidewalk may be ordered to construct the same within thirty days after being served with notice in the manner prescribed by ordinance, the council may cause the same to be constructed, and assess the cost thereof on the property in front of which the same shall be laid. In case any property owner shall...