City of Omaha v. Cane

• Decision Date: 29 May 1884
• Citation: 15 Neb. 657,20 N.W. 101
• Parties: CITY OF OMAHA v. CANE.
• Court: Nebraska Supreme Court

15 Neb. 657

20 N.W. 101

CITY OF OMAHA

v.CANE.

Supreme Court of Nebraska.

Filed May 29, 1884.

Error from Douglas county.

W. J. Connell, for plaintiff.

H. D. Estabrook, for defendant.

MAXWELL, J.

This action was brought by Cane against the city of Omaha, in the district court of Douglas county, to recover for personal injuries sustained by him on the night of the fifteenth of December, 1879, in consequence of an obstruction placed by the city in the middle of Thirteenth street, in said city. On the trial of the cause in the court below a verdict was rendered in favor of Cane for the sum of $806, upon which judgment was rendered.

The errors assigned in the plaintiff's brief will be considered in their order:

First, that the verdict is not sustained by sufficient evidence. It appears, from the testimony, that on the night the injury occurred, Cane, who was possessed of a mule which was attached to a cart in which Cane and wife were riding, drove into Omaha from the south, and in driving along Thirteenth street, the night being very dark, he drove his cart against a brick manhole, rising several feet above the center of the street, overturning the cart and throwing himself and wife on the ground, and inflicting serious injurious upon him. There is no doubt as to the serious character of the injuries inflicted, and, the question of negligence being properly submitted to the jury, we are of the opinion that there is sufficient testimony showing a failure of the proper authorities of the city of Omaha to perform their duty in regard to the obstruction in question, to sustain the verdict.

Second, that the verdict is contrary to law. The objection made is that the carelessness of Cane himself, as well as that of the city, operated directly to produce the injury complained of. This objection was evidently made under a misapprehension as to the testimony, as it fails to show negligence on the part of Cane.

Third, that the court erred in refusing to grant a continuance. It appears from the record that Cane, on cross-examination, stated that the accident occurred in September and not in December, as alleged in the petition; thereupon the attorney for the city asked for a continuance upon the ground that he was taken by surprise, and that the date was a material fact upon which the city could predicate a defense. It is pretty evident that the object of asking for a continuance was to delay the trial as long as possible, and not because the city had...