Day v. Metropolitan Utilities District
| Decision Date | 01 July 1927 |
| Docket Number | 25232 |
| Citation | 214 N.W. 647,115 Neb. 711 |
| Parties | PARK L. DAY, APPELLEE, v. METROPOLITAN UTILITIES DISTRICT, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Affirmed.
AFFIRMED.
John L Webster and R. B. Hasselquist, for appellant.
O'Brien & Powers and Richard S. Horton, contra.
Heard before GOSS, C. J., ROSE, DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.
This is an action to recover damages for personal injuries, alleged to have been caused in consequence of the negligence of defendant. In its answer defendant denied negligence and alleged contributory negligence on the part of plaintiff and his failure to file a claim with defendant and give notice of the time, place and cause of and circumstances attending his injury, as prescribed by section 3746, Comp. St. 1922. In his reply plaintiff denied contributory negligence. Plaintiff had the verdict and judgment thereon, and defendant appealed.
Defendant is a public corporation created by law for the purpose of taking charge of and operating public utilities owned by the metropolitan city of Omaha. It controls and operates the water and gas plants in said city. One of the instrumentalities used by defendant in carrying on its business is what is termed a "drag line." This machine is a caterpillar tractor on which is erected a revolving platform, and on this platform is a crane, with a boom 30 to 35 feet long. To this boom is attached a dipper or clam shell. The machine is used in digging ditches and making excavations. The entire drag line weighs something over 16 tons and is propelled from one place to another by its own power. The revolving platform is about 12 feet wide and 3 feet or more above the ground. At the time of the injury complained of, defendant's servants were moving the drag line along Thirtieth street in the city of Omaha at about the hour of 11:45 p. m., traveling in a northerly direction. In approaching Scott street, which intersects Thirtieth street, the ones operating this machine desired to turn eastward on Scott street. The drag line was traveling at the rate of about a mile or a mile and a half per hour, and had been on the east or right-hand side of the street, but as he approached Scott street the operator veered the course of the drag line to northwest so as to have ample room in which to make the turn into Scott street. On Thirtieth street there is a double-track street railway. At the time of the accident, plaintiff was a motorman operating a north-bound street car upon the east track on Thirtieth street. While operating the street car, he ran into and against the drag line at the time it was veered to the northwest for the purpose of entering Scott street, and received the injuries complained of. He avers that there were no lights upon the drag line; that one corner of the rear end of the revolving platform projected over the west rail of the east track of the street railway; that he did not see and, in the exercise of reasonable care, could not have seen the drag line until too late to avoid collision.
Many errors are assigned by defendant for reversal. They may be grouped under the following heads (1) Plaintiff is not entitled to recover because of his failure to serve and file the written notice, stating the time, place and cause of the injury and other details, prescribed by section 3746, Comp. St. 1922; (2) plaintiff was guilty of such contributory negligence that, as a matter of law, it deprives him of the right to recover; (3) errors in the admission and exclusion of evidence; (4) errors in giving and refusal of instructions.
Plaintiff concedes that no notice or claim was filed by him with defendant, as prescribed by section 3746, Comp. St. 1922, but contends that the statute is void because, in its enactment, the provisions of section 14, art. III of the Constitution, were contravened. The constitutional provision referred to is as follows:
Section 3746, Comp. St. 1922, was originally enacted as chapter 90, Laws 1917, with the following title: "An act to amend section 2 of chapter 143 of the Laws of 1913, being section 4244 of the Revised Statutes of Nebraska for 1913, and to repeal said section as it now exists, and all acts and parts of acts in conflict with the provisions of this act." The first paragraph of said chapter 90 (now section 3746, Comp. St. 1922) is a repetition of the original section 4244, Rev. St. 1913. Said original section provides that metropolitan water districts should be bodies corporate and possess the powers of corporations for public purposes; that such districts might sue and be sued, purchase and sell personal and real property, and should have the sole management and control of the water plants, revenues and income, owned by the metropolitan city within the districts, and that they might exercise the powers granted to cities and villages by the general statutes of the state for the construction or extension of water plants. The new matter added to said section in the amendatory act is as follows:
It is the contention of plaintiff that the new matter, particularly that part pertaining to the filing of claims for personal injuries and giving notice to the district within 20 days of the injury, was not germane to the original section amended, and that therefore the act was broader than its title and contravened the above quoted constitutional provision.
It may be here noted that, by subsequent legislation, the name of the Metropolitan Water District has been changed to Metropolitan Utilities District, and the powers have been enlarged so as to permit a district to operate public utilities other than water-works.
It is a rule, firmly established in this, and generally recognized in other, jurisdictions, that, when the title of a legislative act is to amend a particular section of an existing statute the proposed amendment must be germane to the subject-matter of the section sought to be amended. Miller v. Hurford, 11 Neb. 377, 9 N.W. 477; Trumble v. Trumble, 37 Neb. 340, 55 N.W. 869; State v. Tibbets, 52 Neb. 228, 71 N.W. 990; State v. Cornell, 54 Neb. 72, 74 N.W. 432; State v....
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Day v. Metropolitan Utilities Dist.
...115 Neb. 711214 N.W. 647DAYv.METROPOLITAN UTILITIES DIST.No. 25232.Supreme Court of Nebraska.July 1, [214 N.W. 647]Syllabus by the Court. Where the title of a legislative act is to amend a particular section of an existing statute, the proposed amendment must be germane to the subject-matte......