City of Omaha v. Richards

• Decision Date: 06 October 1896
• Citation: 49 Neb. 244,68 N.W. 528
• Parties: CITY OF OMAHA v. RICHARDS.
• Court: Nebraska Supreme Court

49 Neb. 244

68 N.W. 528

CITY OF OMAHA

v.RICHARDS.

Supreme Court of Nebraska.

Oct. 6, 1896.

Syllabus by the Court.

1. Held, that the city is liable for the death of a boy 10 years old by drowning, caused by falling from a section of wooden sidewalk which he was using as a raft upon a pond of water within the corporate limits, a part thereof being in a public street, and part upon private property; it being shown that such accumulation of water was occasioned by the negligence of the city in grading said street and constructing a storm sewer therein.

2. Whether the deceased was guilty of contributory negligence was a question of fact to be determined by the jury, from the evidence adduced.

3. An exception “to the giving of instructions 3, 4, 5, 6, 7, 8, and 9, contained in the general charge of the court, and to the giving of each said instruction,” is a separate and specific exception to each of said paragraphs of the charge, and is therefore sufficient.

4. Brooks v. Dutcher, 36 N. W. 128, 22 Neb. 644, and Walker v. Turner, 42 N. W. 918, 27 Neb. 103, in so far as they state a contrary doctrine, overruled.

5. The assignment in the motion for a new trial relating to the giving of instructions held sufficient.

6. The third and sixth paragraphs of the charge set out in the opinion correctly state the rule as to the liability of a city to keep its streets in safe condition for the use of the public, and are applicable to the case made by the pleadings and evidence.

7. A party cannot complain of an instruction in harmony with one requested by him.

8. An assignment in a petition in error that the court erred in admitting testimony is too indefinite.

9. A verdict for $2,850 held not excessive.

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

Action by Fannie E. Richards, administratrix of George Bertram Weston, deceased, against the city of Omaha and others. The action was subsequently dismissed as to all defendants but the city. From a judgment for plaintiff, defendant brings error. Affirmed.W. J. Connell and E. J. Cornish, for plaintiff in error.

Breckenridge & Breckenridge and L. F. Crofoot, for defendant in error.

NORVAL, J.

This is an action by Fannie E. Richards, as administratrix of the estate of George Bertram Weston, deceased, against the city of Omaha, William J. Connell, and William E. Clark, to recover damages for the death of plaintiff's intestate. The death of Weston was caused by drowning in a pond of water in the corporate limits of said city. A general demurrer to the petition was filed by the defendants Connell and Clark, which was sustained by the court, and the action dismissed as to them. This judgment was affirmed at the January term, 1895. Richards v. Connell, 45 Neb. 467, 63 N. W. 915. The city filed an answer to the amended petition, to which the plaintiff replied by a general denial, and the issues tendered by the pleadings were tried to a jury, which resulted in a verdict and judgment for the plaintiff in the sum of $2,850. The city has brought the record to this court for review.

The first ground relied upon for a reversal is that the verdict is not sustained by sufficient evidence, and is contrary to law. The only testimony in the case was that introduced by the plaintiff. There is no controversy regarding the facts, except in one particular, which will be referred to hereafter. South Twenty-Fifth street, in the city of Omaha, runs north and south, and is a public thoroughfare. Lots 40 and 41 in Hickory Place, an addition to said city, front upon the east side of said street, and at the time of the drowning were owned by W. J. Connell. Lot 59 in Redick's Second addition to said city, owned by W. E. Clark, adjoins Mr. Connell's lots on the north, and likewise abuts upon said street. A large draw or ravine intersected the street opposite the above-described premises, owned by Connell and Clark, respectively. A long time prior to June 29, 1891, the city raised the grade of the street, but not for the entire width thereof, where it crosses the ravine by the construction of an embankment in such a manner as to leave no sufficient outlet for the surface water which accumulated in said draw upon the lots aforesaid and the east side of said street. A storm sewer had been constructed in the street several feet below the surface thereof, but it had no catch basin or other opening, except a manhole, to drain the water. This manhole was near the west line of the street, and was constructed so high above the ground as to prevent the drainage of the surface water at that point into the sewer. On the date aforesaid, and at divers times prior thereto, there had been allowed to accumulate and remain in said draw on the eastern portion of said street a large pond or body of water, which extended to and upon the said lots of Connell and Clark. On said date, plaintiff's intestate, a lad about 10 years old, and a number of boys, went upon a section of a wooden sidewalk, which had been constructed along the west side of said street, but which had become detached, and was then floating upon the water, and used the same for a raft, for pleasure and amusement, and, while so doing, young Weston fell therefrom into the water, and was drowned. The witnesses do not agree as to the exact place where he lost his life, one of them, at least, testifying that it was in the water on said street, while the inference can be drawn from the testimony of other witnesses that the drowning was on the property adjacent to said street. The witnesses, however, all agree that there was but a single body of water where the accident occurred; and that the raft conveyed the deceased from the street to the adjacent premises, there being no fence or barriers to indicate the east line of the street. This pond was only a short distance from the Mason public school building. No safeguards or danger signals had been put out. It is argued that the foregoing facts create no liability against the city.

It is the settled doctrine of this state that it is the duty of a municipal corporation to keep its streets in a reasonably safe condition for use by the public; and, if it negligently fails so to do, it is liable for the damages resulting therefrom, unless contributory negligence is shown. The city attorney, in his brief, admits such to be the law; and he further concedes that the better and safer rule is that a child using a public street for the purpose of play and amusement is entitled to the same protection as is afforded a person using the street in the ordinary modes of travel. And there can be no doubt of it. As was said by Chief Justice Scholfield, in delivering the opinion of the court in City of Chicago v. Keefe, 114 Ill. 222, 2 N. E. 267, which was an action to recover for the death of a child who died from an injury received while rolling a hoop on a defective sidewalk in one of the streets of that city: “There is no limitation in the statute that the streets shall be kept in repair ‘for travelers.’ They are to be kept in repair as streets, and, by necessary implication, for all purposes to which streets may be lawfully devoted. We assume as self-evident that, with us, streets are open to the use of the entire public as highways, without regard to what may be the lawful motives and objects of those traversing them; that those using them for recreation, for pleasure, or through mere idle curiosity, so that they do not impinge upon the rights of others to use them, are equally within the protection of the law while using them, and hence equally entitled to have them in a reasonably safe condition, with those who are passing along them as travelers, or in the pursuit of their daily avocations. * * * In crowded cities, their use for pleasure, and sometimes even for the promotion of health, may be regarded as a public necessity. On like principle, why may they not be used by children in play and amusement, so long as the rights of others being on or passing along the street shall not be prejudiced thereby? We can perceive no reason. Such use is certainly the universal custom.” In passing upon a motion for a rehearing, the court, in the opinion, say: “A child may lawfully be upon the sidewalk for pleasure only,--that is to say, for play; and the city owes the same duty to have a sidewalk in a reasonably safe state of repair, in respect of it, that it does in respect of those who are on the sidewalk passing to or returning from their places of business or abode.” A case quite analogous in principle to the one at bar is City of Chicago v. Hesing, 83 Ill. 204. That was an action to recover damages for the death of a child about four years old. The third paragraph of the syllabus reads thus: “It is gross negligence on the part of a city to leave a ditch, filled with water,...