City of Omaha v. Philadelphia Mortgage & Trust Company

• Citation: 129 N.W. 996,88 Neb. 519
• Decision Date: 15 February 1911
• Docket Number: 16,297
• Parties: CITY OF OMAHA, APPELLEE, v. PHILADELPHIA MORTGAGE & TRUST COMPANY, APPELLANT
• Court: Supreme Court of Nebraska

129 N.W. 996

88 Neb. 519

CITY OF OMAHA, APPELLEE, v. PHILADELPHIA MORTGAGE & TRUST COMPANY, APPELLANT

No. 16,297

Supreme Court of Nebraska

February 15, 1911

APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Affirmed.

AFFIRMED.

William Baird & Sons, for appellant.

H. E Burnam, I. J. Dunn and J. A. Rine, contra.

OPINION

SEDGWICK, J.

A judgment was recovered against the city of Omaha for damages caused by falling through an opening in the walk along the property owned by this defendant. Afterwards the city brought this action against the defendant to recover the amount of the same judgment, interest and costs. Upon trial in the district court for Douglas county without a jury, the court found in favor of the plaintiff and entered judgment for the amount claimed. The defendant has appealed.

It appears from the evidence, a large part of which is contained in the stipulation of facts, that 25 or 30 years ago one Peter Goos erected a hotel building on the lots in question, and excavated an opening called an "area" along the side of said building 25 or 30 feet in length and several feet in width under the sidewalk. Afterwards he mortgaged the building to this defendant to secure an indebtedness, and the defendant foreclosed the mortgage, and upon the foreclosure sale purchased the property, and so became the owner thereof. The defendant thereupon leased the property from time to time for hotel purposes, and it was being so occupied by the tenant of this defendant at the time the accident occurred, which was the occasion of the damages recovered in the judgment against the city. It does not appear from the evidence when nor by whom the opening in the walk over the area was made, and the city authorities had not notified the defendant to repair the defect in these openings before the accident occurred.

1. It is first insisted by the defendant that the owner of the property is not liable for defects in the sidewalk adjoining the property without having first been notified by the city of such defects and given opportunity to repair the same. The statute in force at the time of the accident provided that "in case the owner or owners of any such lot, lots or lands abutting on such street or portion thereof, shall fail to construct or repair such sidewalks in the manner and within the time as directed and required by the council in each case after having received due notice to do so, they shall be liable for all damages or injuries occasioned by reason of the defective or dangerous condition of any such sidewalks." Comp. St. 1901, ch. 12a, sec. 109. It appears, therefore, that under the provisions of the statute as it then existed the owner of property in the city of Omaha was required to keep the walk adjacent to the property in repair, and if damages were suffered by reason of his failure to do so he was liable for such damages, but only upon condition that he had been notified of the defect and required by the city to repair the walk. Therefore, so far as ordinary walks are concerned, the contention of the defendant should be sustained.

2. It appears from the evidence, as before stated, that this area under the sidewalk was constructed with the hotel building but there is no evidence in the record as to the purpose of the openings in the covering of this area. The defect in these openings was the cause of the accident, and it is contended that, they being in the sidewalk adjoining the hotel building, the defendant would not be liable for neglect to repair the same unless notified by the city and required to so repair them. In this connection the defendant insists that it had no notice or knowledge of the defect in these openings, and is therefore not liable for such damages. There is no evidence in the record that there was any application to the city authorities for permission to construct this area, or that any such permission was given, and it is argued that there cannot therefore be implied any agreement or obligation on the part of the owner of the property to maintain the area and its covering in a proper and a safe condition. We cannot, however, presume that the defendant or its grantor constructed this area without the knowledge and at least implied consent of the city authorities. It must therefore be presumed that the city authorities consented to the construction of this area, and that consent was upon the implied condition that the owner of the property would maintain it in a proper and safe condition. This area was also of such a character and of such dimensions that the defendant must be held to have known of its...