City of Lincoln v. O'Brien

• Decision Date: 17 November 1898
• Docket Number: 9756
• Citation: City of Lincoln v. O'Brien, 56 Neb. 761, 77 N.W. 76 (Neb. 1898)
• Parties: CITY OF LINCOLN v. CATHERINE O'BRIEN
• Court: Nebraska Supreme Court

77 N.W. 76

56 Neb. 761

CITY OF LINCOLN v. CATHERINE O'BRIEN

No. 9756

Supreme Court of Nebraska

November 17, 1898

ERROR from the district court of Lancaster county. Tried below before HALL, J. Affirmed.

AFFIRMED.

Joseph R. Webster and John P. Maule, for plaintiff in error:

The city charter, as amended in 1889, makes the lot owner liable primarily and casts obligation on him to keep the walk in repair, and thereby relieves the city of liability. (Arkadelphia v. Windham, 49 Ark. 139; Winbigler v. City of Los Angeles, 45 Cal. 36; Young v Charleston, 20 S. Car. 116; City of Detroit v Blackeby, 21 Mich. 84; Pray v. Jersey City, 32 N. J. Law 394; French v. City of Boston, 129 Mass 592; City of Marquette v. Cleary, 37 Mich. 296; Morgan v. City of Hallowell, 57 Me. 375; Jones v. City of New Haven, 34 Conn. 13; Hewison v. City of New Haven, 37 Conn. 475; McCutcheon v. Village of Homer, 43 Mich. 483; City of Detroit v. Putnam, 45 Mich. 265.)

No claim complying with the statute, imposed as a condition precedent to a cause of action, was filed with the city clerk and no action will lie. (City of Lincoln v. Grant, 38 Neb. 369; City of Lincoln v. Finkle, 41 Neb. 575; City of Denver v. Saulcey, 38 P. 1098 [Colo.].)

Giving notice in the form and manner prescribed is a condition precedent without which plaintiff may not maintain his action. (Reining v. City of Buffalo, 102 N.Y. 308; Wentworth v. Town of Summit, 60 Wis. 281; Gay v. City of Cambridge, 128 Mass. 387; Plum v. City of Fond du Lac, 51 Wis. 353.)

N. C. Abbott, also for plaintiff in error.

Mockett & Polk and R. D. Stearns, contra:

A city cannot abandon its duty to keep sidewalks in repair. (Davis v. City of Omaha, 47 Neb. 842; City of Lincoln v. Smith, 28 Neb. 762; City of Chadron v. Glover, 43 Neb. 732; City of Lincoln v. Calvert, 39 Neb. 305; City of Aurora v. Cox, 43 Neb. 727.)

The duty of a city to keep its streets in repair extends to sidewalks, and it is liable for negligence in failing to perform that duty. (Burns v. City of Toronto, 42 U. C. Q. B. 560; Hutton v. Town of Windsor, 34 U. C. Q. B. 487; Ray v. Village of Petrolia, 24 U. C. C. P. 420; Bacon v. City of Boston, 3 Cush. [Mass.] 174; City of Lowell v. Spaulding, 4 Cush. [Mass.] 277; Drake v. City of Lowell, 13 Met. [Mass.] 292; Hart v. City of Brooklyn, 36 Barb. [N. Y.] 226; Kirby v. Boylston Market Ass'n, 14 Gray [Mass.] 249; Manchester v. City of Hartford, 30 Conn. 118; Hubbard v. City of Concord, 35 N.H. 54; Springfield Milling Co. v. Lane County, 5 Ore. 265; Mayor v. Furze, 3 Hill [N. Y.] 612; City of Chicago v. O'Brien, 111 Ill. 532; Studley v. City of Oshkosh, 45 Wis. 380; Furnell v. City of St. Paul, 20 Minn. 117; Village of Warren v. Wright, 3 Ill.App. 602; City of Chicago v. Langlass, 66 Ill. 361; City of Chicago v. Crooker, 2 Ill.App. 279; City of Atlanta v. Perdue, 53 Ga. 607; City of Chicago v. McCarthy, 75 Ill. 602; Moore v. City of Minneapolis, 19 Minn. 300; Market v. City of St. Louis, 56 Mo. 189; Barnes v. Town of Newton, 46 Ia. 567; Higert v. City of Greencastle, 43 Ind. 574; Boucher v. City of New Haven, 40 Conn. 456; Phelps v. Hawley, 52 N.Y. 23; Hurford v. City of Omaha, 4 Neb. 336; Blake v. Portsmouth & C. R. Co., 39 N.H. 435; Inhabitants of Veazie v. Inhabitants of China, 50 Me. 518; Steines v. Franklin County, 48 Mo. 167; Wilson v. Mayor, 43 Am. Dec. [N. Y.] 719; City of Rochester v. Campbell, 123 N.Y. 405.)

The neglect of an abutting owner to keep the sidewalk in repair, and to keep it free from snow and ice as required by law, does not render him liable to a party injured, or to the city itself, unless such owner himself caused the defect. (City of Rochester v. Campbell, 25 N.E. [N. Y.] 937; Russell v. Village of Canastota, 98 N.Y. 496; Heeney v. Sprague, 11 R. I. 456; Flynn v. Canton Co., 40 Md. 312; Hill v. City of Fond du Lac, 56 Wis. 242; Knupfle v. Knickerbocker Ice Co., 84 N.Y. 488; Eustace v. Jahns, 38 Cal. 3; Weller v. McCormick, 47 N. J. Law 397; City of Keokuk v. District of Keokuk, 53 Ia. 352; State v. Gorham, 37 Me. 457.)

The charter devolves upon the city the custody of and power and control over streets usually devolved upon municipal corporations. This necessarily creates the obligation to keep the same in repair and the liability for injuries caused by neglect of that duty. (City of St. Paul v. Seitz, 3 Minn. 205; Shartle v. Minneapolis, 17 Minn. 284; Furnell v. City of St. Paul, 20 Minn. 117; City of Chicago v. Robbins, 2 Black [U. S.] 422; Inhabitants of Westfield v. Mayo, 122 Mass. 100; City of Boston v. Worthington, 10 Gray [Mass.] 496; City of Lowell v. Short, 4 Cush. [Mass.] 275; Inhabitants of Milford v. Holbrook, 9 Allen [Mass.] 17; Inhabitants of West Boylston v. Mason, 102 Mass. 341; City of Norwich v. Breed, 30 Conn. 535; Inhabitants of Veazie v. Penobscot R. Co., 49 Me. 119.)

When the charter of a city gives it the power to cause sidewalks to be kept in repair and makes adequate provision for so doing, the exercise of the power follows as a duty. In such case, the city is liable for actionable defects in sidewalks, although the charter requires the lot owner to build the sidewalks and imposes a penalty for his failure in this regard. The abutting owner is not bound to keep the sidewalk in repair, unless by virtue of the requirement of a statute, and is not responsible to travelers or to the city for defects therein not caused by himself. (Moore v. Gadsden, 93 N.Y. 12; Wenzlick v. McCotter, 87 N.Y. 127; State v. Gorham, 37 Me. 451; City of Philadelphia v. Smith, 16 A. 493 [Pa.]; City of Bloomington v. Bay, 42 Ill. 503; Browning v. City of Springfield, 17 Ill. 143; City of Joliet v. Verley, 35 Ill. 58; Toutloff v. City of Green Bay, 65 N.W. 168 [Wis.].)

The duty to construct and maintain sidewalks being in the nature of a tax is one that is owing only to the city, just as the duty to pay taxes for local improvements imposed in any other way. It is not, and from its very nature cannot be, a duty owing third persons. (Noonan v. City of Stillwater, 7 Am. & Eng. Corp. Cases [Minn.] 17; Commissioners v. City of Topeka, 39 Kan. 197; Norton v. City of St. Louis, 97 Mo. 537; Taylor v. Lake S. & M. S. R. Co., 45 Mich. 74.)

The statement filed with the city clerk sufficiently described the premises where the injury occurred. (Wall v. Town of Highland, 39 N.W. 560 [Wis.]; Fopper v. Town of Wheatland, 18 N.W. 514 [Wis.]; Delger v. City of St. Paul, 14 F. 567; Salladay v. Town of Dodgeville, 55 N.W. 696 [Wis.]; Laird v. Town of Otsego, 62 N.W. 1042 [Wis.]; Fassett v. Town of Roxbury, 55 Vt. 552; Fortin v. Inhabitants of Easthampton, 8 N.E. 328 [Mass.].)

OPINION

The facts are stated in the opinion.

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 chapter 13a, Compiled Statutes. 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, subdiv. 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 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 any such property owner shall refuse and neglect to...