City of Omaha v. Jensen

• Decision Date: 30 June 1892
• Citation: 52 N.W. 833,35 Neb. 68
• Parties: CITY OF OMAHA v. FREDERICKA JENSEN
• Court: Nebraska Supreme Court

52 N.W. 833

35 Neb. 68

CITY OF OMAHA v. FREDERICKA JENSEN

Supreme Court of Nebraska

June 30, 1892

ERROR to the district court for Douglas county. Tried below before DOANE, J.

AFFIRMED.

A. J Poppleton, for plaintiff in error:

The court erred in refusing the instruction asked. (Dillon Munic. Corp., sec. 1015; Craig v. Sedalia, 63 Mo 417; Brown v. Glasgow, 57 Id., 157; Cooley, Torts, 745 and cases cited.) The court erred in admitting the testimony of Nels Christensen. (Spielman v. Flynn, 19 Neb. 346.)

Connell & Ives, contra:

The city is not relieved of its liability by virtue of its contract with Thompson, the contractor. (Palmer v. Lincoln, 5 Neb. 137; Lincoln v. Walker, 18 Id., 248; McAllister v. Albany, 23 P. [Ore.], 845.) No notice, either actual or constructive, of the dangerous condition of the street is required. (City of Birmingham v. McCrary, 4 S. Rep. [Ala.], 630; Brusso v. Buffalo, 90 N.Y. 679; Hanniford v. Kansas, 15 S.W. [Mo.], 753; Springfield v. Le Claire, 49 Ill. 476; Chicago v. Johnson, 53 Ill. 91.) There are three fatal objections to the consideration of the alleged error relating to Christensen's testimony: It was not pointed out during the trial. It was not even in the most remote and general way embraced in the motion for a new trial. It is not assigned in the petition in error. (Dietrichs v. R. Co., 13 Neb. 48; R. V. R. Co. v. Hayes, Id., 491; Yates v. Kinney, 25 Id., 122.)

OPINION

MAXWELL, CH. J.

The defendant in error brought an action against the city of Omaha to recover for personal injuries caused by falling into an excavation in that city, which was negligently left without guards or other protection. The city pleads two defenses: First, that the injury was caused by the negligence of the party injured; and, second, that the sewer trench described in plaintiff's petition was at said date being constructed under a contract made to the lowest bidder as provided and required by the charter of the city of Omaha in that regard, and under and by virtue of the terms of said contract the contractor was to erect and maintain the necessary guards, signals, and protection on and around said work, so as to prevent the danger of accidents to travelers upon the street, and that under and by virtue of the terms of said contract, the defendant, the city of Omaha, had nothing whatever to do with the maintaining of such guards, signals, and protections, and the defendant further saith that it had no knowledge, directly or otherwise, that the contractor was not maintaining the necessary and proper guards, signals, or protection, and that the defendant did not have notice that such signals, guards, or protections were not maintained by said contractor." On the trial of the cause the jury returned a verdict in favor of Mrs. Jensen for the sum of $ 2,000, on which judgment was rendered.

It is contended, first, that the city was not liable, for the reason that the proof shows that it had expressly stipulated with the contractor that he should place guards around the excavation, and that it had no actual notice of his failure to supply them, and that the danger had not existed a sufficient length of time to charge the city with the implied notice. The attorney for the city thereupon requested the court to give the following instruction "The jury are instructed that under the terms and conditions of the contract, introduced in evidence by the defendant, under which the sewer was being constructed, the city is not liable in damages to the plaintiff for the failure of the contractor to place or maintain guards or signals, unless you find from the evidence that the city, by and through its officers, had actual knowledge that guards or signals were not put up over the sewer as a warning to travelers on that part of the street. Whereas this sewer trench had been dug on the very day of the happening of the accident, you are instructed, as a matter of law, that the want of signals or guards upon that evening had not existed for a sufficient length of time to constitute constructive or presumptive notice to the city that the sewer was left unguarded and unprotected, so there could be no recovery in this case unless the plaintiff has proven that the city, through its proper officers, did have actual knowledge that the contractor had omitted to put up the proper signals or guards, and that after such knowledge had come to the officers or its proper agents, they had length of time to see that the same were put up before the accident happened. You are further instructed that the plaintiff does not claim to have introduced any evidence to prove that any officers of the city of Omaha had any actual knowledge that guards and signals were not put up by the sewer trench, you should therefore find for the defendant." This the court refused to give, to which exceptions were duly taken. In this there was no error. Where the injury is the result of the work itself, however skillfully performed, and not in the manner of performance, the city will be liable for an injury sustained by a party in the exercise of due care; in other words, where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agrees or is authorized to do, the person who causes the obstruction or defect will be liable. Thus, suppose the city caused a ditch to be dug across the street and the same should be left open and unguarded, the city cannot plead as a defense that the contractor agreed to keep guards around the...