City of Omaha v. Bowman

• Decision Date: 22 September 1897
• Docket Number: 7426
• Parties: CITY OF OMAHA v. FANNIE BOWMAN, ADMINISTRATRIX
• Court: Nebraska Supreme Court

72 N.W. 316

52 Neb. 293

CITY OF OMAHA v. FANNIE BOWMAN, ADMINISTRATRIX

No. 7426

Supreme Court of Nebraska

September 22, 1897

ERROR from the district court of Douglas county. Tried below before HOPEWELL, J. Reversed.

REVERSED.

W. J Connell and E. J. Cornish, for plaintiff in error.

Silas Cobb, contra.

RYAN C. HARRISON, J., not sitting.

OPINION

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 was 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 on 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 afore said, 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 Twenty-eighth 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 where 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 for the escape of the water which might reasonably be expected to flow along the course of the ravine." The instruction following that above quoted was in this language: "(2.) If by reason of the failure of the defendant when making the fill in Davenport street to provide a culvert or other passage for the water naturally flowing in and along the ravine the pond in question was formed, and you shall so find from the evidence, then that is a fact that you should consider along with other facts as hereinafter instructed in making up your verdict."

In the brief for the defendant in error it is insisted that this court in City of Beatrice v. Leary, 45 Neb. 149, 63 N.W. 370, has recognized the applicability of the principles laid down in the above instructions to the facts in this case. In the case just cited there was involved the question of...