City of S. Omaha v. Cunningham

• Decision Date: 03 February 1891
• Citation: 47 N.W. 930,31 Neb. 316
• Parties: CITY OF SOUTH OMAHA v. CUNNINGHAM.
• Court: Nebraska Supreme Court

31 Neb. 316

47 N.W. 930

CITY OF SOUTH OMAHA

v.CUNNINGHAM.

Supreme Court of Nebraska.

Feb. 3, 1891.

Syllabus by the Court.

1. In an action by an executrix against the city of South Omaha for causing the death of the testator by negligently leaving Twenty-Sixth street unguarded at a point a short distance north of the intersection of said street with Twenty-Seventh street, the testimony showing that Twenty-Seventh street runs in a north-westerly direction where it intersects Twenty-Sixth street, and that for a considerable distance north of the intersection the space between the two streets is but a few feet in width, and that the excavation was made on Twenty-Seventh street near the intersection of said streets, held, that the questions of fact were fairly submitted to the jury.

2. If a person make an excavation so near the line of a public street that one lawfully passing along said street may accidentally fall into it, it is the duty of the person making such excavation to erect barriers as a protection against such accidents, and if he fails to do so, and a person falls into such excavation, and sustains injuries, he will be liable for such neglect.

3. Intoxication, when relied on as a defense, must be pleaded. Under a general denial the only proof admissible is to establish or disprove the facts stated in the petition.

Error to district court, Douglas county; DOANE, Judge.Edgerton & Farnsworth, for plaintiff in error.

John W. Lytle, for defendant in error.

MAXWELL, J.

This action was brought by the defendant in error, as executrix of the estate of Martin Cunningham, to recover damages for the death of her husband, which it is alleged was caused by the negligence of the city. In her petition, after setting forth her right to bring the action, she alleges “that near Q street, in said city of South Omaha, there had been a path passing from Twenty-Sixth street to Twenty-Seventh street, and which had been used by the general public in passing from the north-east part of the city to the south and west part thereof. That no barriers, railings, or signals have been placed where the travel had been over said path mentioned, as aforesaid, but that said defendant carelessly and negligently failed to place any railing, barriers, or signals along the east line of said Twenty-Seventh street, or west line of Twenty-Sixth street, to prevent accidents, and protect the public, as hereinafter set forth. That within three days prior to the 11th day of November, 1887, the defendant caused a street known as ‘Twenty-Seventh Street,’ and which was a public thoroughfare for its citizens to pass over, to be graded perpendicular to a depth of 16 1/2 feet on the east side of said street, at a point where the accident hereinafter described occurred, and that at said point the said east line of Twenty-Seventh street comes to within seven feet of the west line of Twenty-Sixth street, also a public traveled thoroughfare, in said city, and both of said streets intersect with each other at a point about 35 feet south of the place where said accident occurred. That notwithstanding it was the duty of said defendant to keep the said excavation in a safe condition by railings and guards so as to protect its citizens from accidents, yet the said defendant did not place any guards or railings on said west line of said Twenty-Sixth street, nor the east line of Twenty-Seventh street, at the point where said accident occurred, nor any other place along said excavation between P and Q streets, and did not make said excavation in a safe condition by railings and guards so as to protect its citizens while passing along said Twenty-Sixth street from accident; but said defendant suffered and allowed the same to remain without such guards, lights, or danger signals to indicate or warn persons approaching of said excavation. That the said Martin Cunningham, while passing down and along Twenty-Sixth street, passed over the narrow strip of land between said streets from 4 to 7 feet wide, and came to the excavation aforesaid, in said Twenty-Seventh street, at a point 75 feet north of the north line of said Q street. That by reason of the grading of Twenty-Seventh street the regular traveled thorougfare on said Twenty-Sixth street was left from 17 to 25 feet above the bottom of said Twenty-Seventh street at the point where said accident occurred, and sloping westward towards the east line of said Twenty-Seventh street. That no guards, barriers, or signals were placed on the line of Twenty-Sixth street as aforesaid, although within seven feet of said excavation. That on the evening of the said 11th day of November, at about 7:30 o'clock, it being after dark, the said Martin Cunningham, while lawfully traveling from the post-office, in South Omaha, to his residence, in the south part of said city, passed down said Twenty-Sixth street, and being wholly unaware of danger, and without any fault on his part, was precipitated down said embankment, and into said excavation, at the point aforesaid, to the street below, and thereby received great bodily injuries, from which he died within six hours thereafter; to the great damage to said plaintiff in the sum of $5,000.”

The answer is a general denial. On the trial of the cause the jury returned a verdict for $5,000 in favor of the plaintiff below, upon which judgment was rendered. The testimony tends to show that the streets running north and south in the city in question are designated by numbers, No. 1 being the first street on the east side, while Nos. 2, 3, 4, etc., are the streets in their order west of No. 1. Twenty-Seventh street is the former county road, and through the city of South Omaha runs in a north-westerly direction, parallel to the Union Pacific Railway. Twenty-Sixth street intersects Twenty-Seventh street between P...