City of Lincoln v. Pirner
| Decision Date | 09 February 1900 |
| Docket Number | 9,089 |
| Citation | 81 N.W. 846,59 Neb. 634 |
| Parties | THE CITY OF LINCOLN v. MARIE T. PIRNER |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before HOLMES, J. Affirmed.
AFFIRMED.
Joseph R. Webster and John P. Maule, for plaintiff in error, argued that the evidence did not make a case of negligence against the city; and that there was no proof to charge the city with notice of defects. See Cooper v. Milwaukee, 72 N.W 1130; Hanscom v. Boston, 141 Mass. 242; Wakeham v. St. Clair Tp. 51 N.W. 696; Gubasko v. New York, 1 N.Y.S. 215; Lohr v. Philipsburg, 30 A 822; Burns v. Bradford, 20 A. 998; Hart v Brooklyn, 36 Barb. 226; Dewey v. Detroit, 15 Mich. 307; Denver v. Saulcey, 38 P. 1098; Jackson v. Boone, 20 S.E. 46; Dittrich v. Detroit, 57 N.W. 125.
The city charter, as amended in 1899, makes the lot-owner liable primarily, and casts obligation on him to keep the walk in repair; and thereby relieves the city of liability. The theory of all former decisions, holding cities liable for defective sidewalks, had been based on the duty of the city to exercise its granted powers, no duty being elsewhere imposed. But this provision imposed elsewhere, on the lot-owner, this duty before impliedly resting on the city. The duty, having been thus expressly cast on the owner, no longer rests on the city, by any rational implication. The city was merely the agent or political arm of the state, whereby the enforcement of this obligation might be coerced. Under this form of statute, municipal liability could not logically be held to exist. Under the former statute the courts held a city liable from a sort of necessity, arising from reasons of public policy, as the liability was imposed nowhere else; and powers were given the city to impose it on the owner. If the city failed to exercise the power efficiently, it was itself held liable--the liability being by statute imposed nowhere else. Now that the obligation was directly imposed on the owner, the reason for the rule of municipal liability was gone. Hence the question of municipal liability, under this act, was a new one, arising in this case as one of first intention, not controlled by decisions made under the former law. Counsel cited Arkadelphia v. Windham, 49 Ark. 139; Winbigler v. Los Angeles, 45 Cal. 36; Young v. Charleston, 20 S. Car. 116; Detroit v. Blackeby, 21 Mich. 84; Pray v. Jersey City, 32 N.J.L. 394; French v. Boston, 129 Mass. 592; Marquette v. Cleary, 37 Mich. 296; Morgan v. Hallowell, 57 Me. 375; Jones v. New Haven, 34 Conn. 13.
In case of a latent defect, not obvious to the passer-by, there was no presumption of notice from mere lapse of time. The city was not a warrantor of safety for one using the street, nor was it bound to make inspection for detection of latent defects. The nature of municipal organization and action was such, and the condition of a crowded urban community such, that constant and critical inspection for latent defects was never imposed and could not reasonably be required. Counsel cited Cooper v. Milwaukee, 72 N.W. 1130, decided November 16, 1897.
N. C. Abbott also appeared of record for plaintiff in error.
Tibbets Bros. Morey & Anderson, for defendant in error, argued that the notice, being definite enough to enable authorities to find the place, was sufficient. Counsel cited Fopper v. Wheatland, 18 N. W. [Wis.], 514; Teegarden v. Town of Caledonia, 50 Wis. 292, 6 N.W. 875; Brown v. Town of Southbury, 1 A. [Conn.], 819; Thompson v. Jones, 4 Wis. 124 [106]; Worthington v. Hylyer, 4 Mass. 196; Wall v. Town of Highland, 39 N. W. [Wis.], 560; Owen v. City of Fort Dodge, 67 N. W. [Ia.], 281; Hein v. Fairchild, 87 Wis. 258, 58 N.W. 413; Fuller v. Hyde Park, 37 N. E. [Mass.], 782; Mecklem v. Blake, 19 Wis. 419, 397; Sargent v. Lynn, 138 Mass. 599; Lyman v. Hampshire, 138 Mass. 74; Tenny v. Beard, 5 N.H. 58.
The petition was sufficient, and there was no variance between the facts stated in the petition and the proof.
Counsel last named, together with W. E. Stewart, in a supplemental brief cited Compiled Statutes, 1899, p. 200; City of Lincoln v. Grant, 38 Neb. 369; City of Lincoln v. Finkle, 41 Neb. 575.
Marie T. Pirner fell through a coal-hole in the side-walk on P street in the city of Lincoln, and as a result of the accident sustained injuries, for which she was awarded damages in an action brought against the city in the district court of Lancaster county. The purpose of this proceeding is to secure a reversal of the plaintiff's judgment. The defendant claims exemption from liability under the following provision of its charter: "It is hereby made the duty of all real estate owners and occupants to keep the sidewalks along the side or in front of the same in good repair, free from snow, ice and other obstructions, and they shall be liable for all damages or injuries occasioned by reason of defective condition of any sidewalk." The claim that this provision relieves cities of the class to which it relates from the duty of maintaining their sidewalks and keeping them safe and fit for use was fully considered in City of Lincoln v. O'Brien, 56 Neb. 761, 77 N.W. 76, and decided adversely to the contention of the defendant.
It is next contended that the court erred in charging the jury on the subject of constructive notice. The law undoubtedly is as claimed by counsel for defendant, that a city, in the absence of actual notice, is not, ordinarily, liable for failure to discover the existence of a defect in a scuttle-hole which has been properly constructed and is apparently safe and secure. The action being grounded on negligence, the test of liability is whether the municipal authorities did everything which, under the circumstances, ordinary care and prudence required them to do; and the rule is that an omission of duty is not to be inferred from a failure to search for defects in a sidewalk where there is no reason to suppose defects may be found. See Cooper v. City of Milwaukee, 97 Wis. 458, 72 N.W. 1130; Duncan v. City of Philadelphia, 173 Pa. 550, 34 A. 235; Hanscom v. City of Boston, 141 Mass. 242, 5 N.E. 249. The jury were told that if the scuttle-hole in which the plaintiff was injured had remained in a defective condition for such a length of time that the authorities, in the exercise of ordinary diligence, should have discovered the defect, notice to the defendant would be presumed, and proof of actual notice would not be necessary to entitle the plaintiff to recover. This instruction was not erroneous. It imposed no duty upon the city beyond that of ordinary care. It did not, it is true, cover the entire question, but it laid down a correct proposition of law applicable to the evidence, and was not in any respect misleading, especially when considered in connection with the fourth paragraph of the charge, which is as follows: "Negligence is the gist of this action and the burden of proving the negligence on the part of the...
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