City of Omaha v. Bowman

• Decision Date: 22 September 1897
• Parties: CITY OF OMAHA v. BOWMAN.
• Court: Nebraska Supreme Court

52 Neb. 293

72 N.W. 316

CITY OF OMAHA

v.BOWMAN.

Supreme Court of Nebraska.

Sept. 22, 1897.

Syllabus by the Court.

1. With respect to water forming a pond on private property within the limits of a city, but not on, or in dangerous proximity to, a public highway, street, or alley, such city owes no duty to the general public (aside from that of a sanitary character), other than such as devolves on private owners of property similarly situated, even though the city may have created the pond of which complaint is made.

2. Negligence must be fairly inferable from the evidence. Its existence cannot be a mere matter of conjecture, and it must be the proximate cause of the injury complained of.

3. Instructions which assumed that evidence of such overflow of lots by the massing thereon by a city of the water of a running stream as would entitle the lot owners to damages would be proper proof in support of a claim for compensation for personal injury to one who had no interest in the lot itself, held erroneous.

Error to district court, Douglas county; Hopewell, Judge.

Action by Fannie Bowman, administratrix of the estate of Albert D. Bowman, deceased, against the city of Omaha. There was a judgment for plaintiff, and defendant brings error. Reversed.E. J. Cornish and W. J. Connell, for plaintiff in error.

Silas Cobb, for defendant in error.

RYAN, C.

This action was brought in the district court of Douglas county by Fannie E. Bowman, as administratrix of the estate of Albert D. Bowman, for the recovery of damages sustained by the estate of the intestate by reason of his death. The deceased, it was alleged in the petition, was about seven years of age when he was drowned in a pond of water which plaintiff in error negligently had permitted to accumulate, and be and remain in, over, and by the side of Davenport street, in the city of Omaha. There were a verdict and judgment against the city in the sum of $1,000. The accident happened on June 15, 1892. The evidence showed that about six years before the date just named the city had constructed an embankment on Davenport street which interfered with the flowing of water from certain lots abutting on said street. The pond in question was caused by this water. The sidewalk was about seven feet from the water, and quite a distance above the water level. There seems to be no dispute in the evidence that to reach the water from the street it was necessary that a person should cross an intervening strip of private property at least six feet in width. A few days before the date of the accident some boys tore up a part of the sidewalk, and launched it upon the pond. Albert D. Bowman and some juvenile friends took possession of this piece of sidewalk, and were using it for a raft, when young Bowman fell off and was drowned. The mere fact that he was thus drowned was alleged in the petition and admitted in the answer. There was no effort to show whether the deceased reached the pond, as he might have done, by passing from his home, near by, over private property, or by way of the street. It is not clear from the petition just what acts and omissions on the part of the city are claimed to constitute negligence on its part. There was charged a failure to place a fence or visible boundary between the street and the private property adjoining. In view of the fact that it was not claimed that the child entered the water from the street, this averment has no bearing on the questions under consideration. The following averments seem to have described the negligence principally, if not entirely, relied upon, and we shall therefore quote them at length: “Plaintiff further states that said pond of water was formed by the water that formerly would have run through a ravine at said place, the same being filled over at said place by said city in constructing and filling up Davenport street at said place, which said water was negligently permitted to accumulate and remain as aforesaid; and the natural outlet for said water being closed and filled up by the defendant city of Omaha a long time previous to the said June 15, 1892, by the city filling up the street at said Davenport, near 28th street and thereabouts, where said death occurred, being filled about five feet on the north side and about fifteen feet on the south side of said Davenport street, and thereby filling up and stopping a creek or ravine that was wont theretofore to flow along where said street was filled as aforesaid; and although there is, and has been a long time prior to June 15, 1892, a sewer about two blocks away from the place of said death, yet there was no provision made for the drainage of said water by the city or said Moody and Stockdale [the owners of the private property on which the pond was] from said lots; said water thereby being discharged upon said lots in and over and upon Davenport street as aforesaid, and there negligently confined, and negligently by all of said defendants permitted to remain upon said property.” In this connection it was alleged that the pond caused in the manner above described had before June 15, 1892, been dangerous and menacing for many years, was very enticing and attractive to children of tender age, many of whom in that locality were in the habit of playing in said pond of water, and that the dangerous, menacing, and enticing condition of the pond had been well known by said Moody and Stockdale and the officers and authorities of the city of Omaha at the time of and before said death.

The defendant in error was permitted to recover upon a theory rather narrower than that above stated, as appears from the following instruction given by the court: “(1) The court charges the jury that if the grade and fill was over and across the ravine, through which, prior to the filling, water from springs and the drainage from the vicinity was accustomed to flow, then it was the duty of the defendant, in making said fill, to provide a passageway...