Foxworthy v. City of Hastings

• Decision Date: 13 December 1888
• Citation: 25 Neb. 133,41 N.W. 132
• Parties: FOXWORTHY v. CITY OF HASTINGS.
• Court: Nebraska Supreme Court

25 Neb. 133

41 N.W. 132

FOXWORTHY

v.CITY OF HASTINGS.

Supreme Court of Nebraska.

Dec. 13, 1888.

Syllabus by the Court.

1. Where an hotel was set back 6 feet and 9 inches from the line of the lot, and the sidewalk extended from the hotel 10 feet and 10 inches into the street, that portion on the lot being constructed or paid for by the proprietor of the hotel, the whole being open to the public to pass and repass at pleasure, it will be deemed a part of the street of the city.

2. Where a considerable quantity of snow has fallen, which, from the nature of the case, must have caused some obstruction on the sidewalks of a city, it is the duty of the city authorities within a reasonable time thereafter to remove, or cause to be removed, such obstruction. The falling of snow is sufficient notice.¹

3. The question whether the city is negligent in not removing the obstruction of snow and ice from the sidewalks is one of fact. Nebraska City v. Rathbone, 20 Neb. 288, 29 N. W. Rep. 920.

Error to district court, Adams county; GASLIN, Judge.

Action for damages by Jefferson H. Fox-worthy against the city of Hastings. Judgment for defendant, and plaintiff brings error.

REESE, C. J., dissents.

J. R. Webster, for plaintiff.

A. D. Yocum, for defendant.

MAXWELL, J.

This action was brought by the plaintiff against the defendant for injuries received by him from a fall, alleged to have been caused by an accumulation of snow and ice on a sidewalk of said city on the night of the 21st of January, 1886. The answer is, in effect, a general denial. On the trial of the cause the jury returned a verdict in favor of the defendant, and the action was dismissed. The testimony tends to show that the plaintiff was a non-resident of Hastings, and arrived there on the night of the 21st of January, 1886, and rode from the depot to the Lepin Hotel. Soon after arriving at the hotel, he started to go to a store near by, but, having passed a few steps along the sidewalk, near the south-east corner of the hotel he slipped and fell on the sidewalk, and sustained a fracture of the pelvis. There is no dispute as to this injury. It is shown to have been of a very serious character, and to have been caused by the plaintiff's falling on the sidewalk. The attorney for the city, in the examination of witnesses, seems to have treated the injury as a trifling matter, of but little importance. The plaintiff testifies, in substance, that he passed out of the front door of the hotel, and that he supposed that he had walked from 27 to 30 feet from the door, when he fell and sustained the injury complained of.

One William Sheesby, a resident of Hastings, called on behalf of the plaintiff, testified, in regard to the obstructions of snow and ice on the sidewalk, as follows: “ Question. When was the last snow-storm before that? Answer. I could not swear very well the time of the last snow-storm. Q. Tell as near as you can. A. It may have been a week or more. Q. You think it was more than three days? A. I think it was. Q. State how the ice lay on the walk? A It was very uneven; the way snow is when stepped upon; and there was one ridge where they had walked the most. Q. On each side of that ridge, how was it, soft or hard? A. It was snow and ice. Q. How deep was the snow that lay upon the walk. A. Some parts of the snow was two feet. From that down to nothing. There were places where the walk was perfectly bare.” On cross-examination, he testified: “ Question. Whereabouts, with reference to the Lepin Hotel, was it two feet deep? A. Where the platform and sidewalk came together. Here it was drifted up and swept off the platform. Q. Do you have reference to where the walks came together, immediately west of the hotel? A. No, sir: the south-east corner of the hotel. The sidewalk in front of that is narrower, and it makes a corner.”

Mr. Pierson, the proprietor of the hotel, testified as follows: “ Question. This snow and ice you mention, what was the ice, compacted snow? Answer. Yes, sir. Q. How long had those hummocks of compacted snow been there? A. I could not say. It was very icy all the way down; in places more so than others. Q. State how long that condition of things had existed. A. I don't know the dates when the snow fell. It was the date the snow fell. The snow fell in the night, and the people coming down town in the morning had made a beaten path. Of course, we cleaned it off next to the house as best we could, but it left a ridge there. East, further along, we did not clean off. It was not cleaned off in front of the other lot. Q. Was it as much as ten days or two weeks that it was on there? A. It is possible.”

A number of witnesses testified to substantially the...