Forbes v. City of Omaha

• Decision Date: 10 May 1907
• Docket Number: 14,808
• Citation: 112 N.W. 326,79 Neb. 6
• Parties: AGNES FORBES, APPELLEE, v. CITY OF OMAHA, APPELLANT
• Court: Nebraska Supreme Court

112 N.W. 326

79 Neb. 6

AGNES FORBES, APPELLEE, v. CITY OF OMAHA, APPELLANT

No. 14,808

Supreme Court of Nebraska

May 10, 1907

APPEAL from the district court for Douglas county: LEE S. ESTELLE JUDGE. Affirmed.

AFFIRMED.

Harry E. Burnam, I. J. Dunn and John A. Rine, for appellant.

George W. Cooper and J. J. O'Connor, contra.

AMES C. OLDHAM and EPPERSON, CC., concur.

OPINION

AMES C.

This is an appeal by the defendant from a judgment recovered in an action for damages for personal injuries, occasioned by a fall on a walk crossing one of the considerably traveled streets of the city, which is alleged to have been negligently permitted to remain in a defective and dangerous condition.

The accident occurred on the 5th day of June. It is not alleged that the walk was dangerous or defective at the date of its construction in the month of March preceding, but the season in the interval was characterized by frequent heavy rains, which washed dirt over the walk near one end, where the accident happened, rendering it muddy and slippery, and gullied the earth out underneath it at that place, so that the structure sagged to a gradient of about one inch to the foot toward one side. The injury was suffered by slipping from the walk in the night time and falling upon an iron cover of a manhole situated close by. There is little, if any, conflict in the evidence as to any important fact. From at least the 10th day of May onward there were frequent heavy rains, which washed out a hole at the place of the accident from 16 to 18 inches deep, and the hole had been as frequently filled by the city with loose dirt, which had been banked up around the edges of the walk, but the walk itself was not raised to grade where it sagged. The walk was three feet wide, and the north side thereof became and was permitted to remain some three or four inches lower than the south side at the point where it was muddy and slippery near the manhole. One such washout had occurred and had been partly repaired, in the manner described, on the 2d of June, three days prior to the accident. We are not clear how much rain fell in the interval, but on the morning after the accident the walk was found to be slippery with mud and inclining to one side, and there was a hole some 18 inches deep underneath it and around the manhole.

At the request of the defendant the jury were permitted to visit the premises, and how much they were enlightened by viewing the scene months after the event, when the rainy season was ended and further repairs had been made, we, of course, do not know, but we are not ready to hold, as we are urged to do by counsel for plaintiff, that such an inspection precludes in all cases the party at whose request it is made from complaining that the verdict is unsupported by the evidence. Notwithstanding such an inspection, after the surroundings are much changed, uncontradicted evidence of unquestioned certainty and evident conclusiveness might still demonstrate that the jury were misled and that their verdict lacked sufficient support. But we do not think that claim in this instance is well founded. A great number of decisions in somewhat similar cases, both by this and by other courts, are cited by counsel for both parties, but such decisions are, of course, upon the peculiar circumstances of particular cases varying from each other much in detail and as to minor and contributing incidents, so that they can hardly be said to be authoritative upon the facts in this or any other like case. The mere...