Davis v. City of Omaha

• Decision Date: 07 April 1896
• Citation: 66 N.W. 859,47 Neb. 836
• Parties: DAVIS v. CITY OF OMAHA.
• Court: Nebraska Supreme Court

47 Neb. 836

66 N.W. 859

DAVIS

v.CITY OF OMAHA.

Supreme Court of Nebraska.

April 7, 1896.

Syllabus by the Court.

1. The fee of the streets of the municipalities of this state is vested in the municipalities themselves, and the sidewalks of the various municipal corporations are parts of the streets thereof.

2. The law of this state devolves upon the various municipal corporations thereof the duty of at all times keeping their streets and sidewalks in a reasonably safe condition for travel by the public; and no municipal corporation, by any act of its own, can devolve this duty on another, so as to relieve itself from a liability resulting from its failure to perform such duty. City of Omaha v. Jensen, 52 N. W. 833, 35 Neb. 68, and City of Beatrice v. Reid, 59 N. W. 770, 41 Neb. 214, followed.

3. The law does not make it the duty of a lot owner to build, maintain, or repair the sidewalks, being part of the streets, in front of his premises.

4. A municipal corporation may employ such agency as it sees fit in the construction or repair of its streets and sidewalks, and may license or permit a lot owner to build or repair a sidewalk in front of his premises under its direction.

5. A general permission or license, given by a city to a lot owner, to build or repair a sidewalk on his premises, will continue until revoked by the city, either expressly or by such conduct on its part as authorizes an inference of revocation.

6. If a lot owner be licensed by a municipal corporation to build a sidewalk in front of his lot, which walk it is the duty of the corporation to build and maintain, and in the performance of such work the lot owner negligently leaves an obstruction in the street, which causes an injury, the city is liable therefor.

7. A municipal corporation may be liable for an injury caused by an obstruction placed in its streets by a mere trespasser; but, to make it liable in such case, it must be shown to have been guilty of negligence in the premises.

8. A municipal corporation notified a lot owner to construct a permanent sidewalk in front of his lot within a time specified, and that, in default of his so doing, the corporation would build the walk, and assess the cost thereof to the lot. The lot owner did nothing towards building the sidewalk within the time specified. Afterwards, without the knowledge or permission of the municipal corporation, the lot owner proceeded to build the walk, and for that purpose, on an afternoon, deposited a number of flagstones in the street opposite his lot, and left them there without barriers or signals. The night following the afternoon of the deposit of said flagstones a traveler was injured by coming in contact with them, and sued the municipal corporation for damages. Held: (1) That it was the duty of the municipal corporation, and not the duty of the lot owner, to build and maintain the sidewalk; (2) That the municipal corporation had the right to permit or license the lot owner to build the walk; (3) that the notice given by the municipal corporation to the lot owner to build the walk was merely a license or permission to him to do so in the time specified; (4) that the license given was not a general or continuing one, but conditioned and limited to the time therein fixed; (5) that the lot owner, in the construction of the walk after the license from the municipal corporation had expired, was not acting either as the agent, employé, or licensee of the municipal corporation, but was a mere trespasser in the streets; (6) that, as the municipal corporation had no knowledge that the lot owner had done anything towards constructing the walk before the happening of the injury sued for, and as the evidence disclosed no negligence on its part in the premises, it was not liable for the injury.

Error to district court, Douglas county; Scott, Judge.

Action by Harry B. Davis against the city of Omaha to recover damages for personal injuries. There was a judgment for defendant, and plaintiff brings error. Affirmed.John D. Howe and E. R. Duffie, for plaintiff in error.

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

RAGAN, C.

Harry B. Davis brought this suit to the district court of Douglas county against the city of Omaha, the city being a municipal corporation existing under the laws of the state as a city of the metropolitan class, to recover damages which he alleged he had sustained by reason of injuries which he had received through the negligence of the city. At the close of the evidence, the jury, in obedience to an instruction of the court, returned a verdict for the city. Judgment of dismissal of Davis' case was rendered upon this verdict, and he prosecutes here a petition in error.

The undisputed facts, so far as the same are material to this opinion, are: That Judge Doane owned a lot fronting on Seventeenth street in said city. Said street was one of the public thoroughfares of the city, and used and traveled by the public as such. On the 3d of May, 1892, the authorities of the city, by resolution, ordered a plank sidewalk in front of Judge Doane's premises to be replaced by a permanent one, and gave notice to Judge Doane that, unless he constructed such sidewalk within five days from the date of the service on him of said notice, it would construct the sidewalk and assess the costs thereof to his property. On the 31st of May, 1892, the five days within which Judge Doane was to construct the sidewalk expired, and he had not at that time done anything towards constructing it. The city thereupon notified Judge Doane to designate the kind of material of which he desired the sidewalk to be constructed. On the 9th of July, 1892, the city ordered the city contractor to lay an artificial stone sidewalk in front of Judge Doane's premises, but this was not done. On the 15th of October, 1892, Judge Doane began the construction of the sidewalk of Bandera stone in front of his lot, and in the prosecution of this work, and in the afternoon of said day, his employé hauled and deposited in the street, outside the curb, in front of said lot, a number of large flagstones. During the night of said 15th of October, Davis was driving on this street in a buggy, and it ran against these stones, was partially overturned, and he was thrown out and injured. No barriers had been erected to prevent the traveler from coming in contact with these stones, nor had any signals been displayed to warn him of their presence. On the 15th of October, 1892, the city did not know that Judge Doane was proceeding to build the walk in front of his premises. On the 4th of November, 1892, the city being still in ignorance that Judge Doane had built the sidewalk in front of his premises,...