Foxworthy v. City of Hastings

• Decision Date: 06 May 1891
• Citation: 31 Neb. 825,48 N.W. 901
• Parties: FOXWORTHY v. CITY OF HASTINGS.
• Court: Nebraska Supreme Court

31 Neb. 825

48 N.W. 901

FOXWORTHY

v.CITY OF HASTINGS.

Supreme Court of Nebraska.

May 6, 1891.

Syllabus by the Court.

1. The evidence examined and considered, and found not to sustain the verdict.

2. The judgment reversed, and cause remanded for new trial.

3. The former opinion, 25 Neb. 133, 41 N. W. Rep. 132, adhered to.

Error to district court, Adams county; GASLIN, Judge.J. R. Webster, for plaintiff in error.

C. J. Dilworth, for defendant in error.

COBB, C. J.

This action was last heard at the July term, 1888, when the judgment of the district court was reversed on error, and the cause remanded. 25 Neb. 133, 41 N. W. Rep. 132. The cause remanded was tried again to a jury, with verdict for the defendant. There was a motion for a new trial, which was overruled, and a bill of exceptions taken based upon the refusal of a new trial for lack of evidence to sustain the verdict. There is no complaint of any ruling of the court pending the trial. The fundamental ground of error is whether there was sufficient evidence to sustain a verdict against the plaintiff and for the defendant. The answer of the defendant was a general denial of the action. The complaint of the plaintiff in brief is that on the 21st day of January, 1886, he went a stranger to the Lepin Hotel, in Hastings, from where he started to visit a drug-store in the city. That he had not been in Hastings since 1883 previously, and arrived there after dark. That immediately after leaving the hotel, on the sidewalk near its south-east corner he slipped upon ice and fell, breaking his hip thereon; suffered great pain; lost 55 pounds in weight during his illness; was supposed to be fatally sick for some weeks; that he is permanently injured; incapacitated for the following of his former profession, which was that of an attorney at law. Upon cross-examination the plaintiff is very particular in locating the place of the accident, and is positive it was within the street proper. The evidence will be examined as to the two questions: (1) The actual location of the place of the accident; (2) whether the city is responsible, upon the evidence, even if the actual location was not in the technical laid-out and dedicated public street.

The evidence upon the location of the place of the accident is as follows:

Plaintiff, Foxworthy: “Ice was on the walk. The location was not far from the corner of the fence east of the hotel. My opinion now is, about the middle of the four or five foot walk, a little west and south of the fence-post, in a north-east direction from the post in the corner of the veranda, and south-east direction from the corner of the hotel. I noticed no ice till I fell down, or commenced to get up. I had no gloves on. Pulled them off to register in the hotel a few minutes before; and when I went to get up felt the ice with my naked hand. When I fell my first impression was to get right up. I found myself unable to do so. I did not have use of myself. I saw the fence corner, and went to crawl to it; and so far as I went in that direction I found ice all the way. I changed my mind then, and tried to get back to the post of the veranda, but there was ice in that direction. Then tried to get to the hotel. About then a gentleman called to me, asking if I was hurt. I did not investigate further about the ice that I remember about. The nearest object when I fell was the fence. Cross-examined: I came out at the east storm-door, and went south-east. When I went out I saw the fence right in front of me, so went out towards the corner. I could see the fence; located it, and got the idea of the direction of the walk. I do not think it was thirty or forty feet from the door. When I went out I saw a man going along. Think he was getting off the hotel front, probably going east, when I started in the same direction. My foot slipped to the south as I faced east, and I fell on my left side. I had gone to where the sidewalk, near the corner of the fence, joins the walk that goes north on the east side of the hotel. I was in that shape, with the fence-post the nearest object to get up by, as I thought. Redirect: The fence corner was north and a little east.”

Albert Manchester testifies: “I went out, and found him (plaintiff) lying against the window. It was icy in the center of the walk, ridged up. It had not been shoveled off. I know it was then icy because I traveled over the walk several times that night and the next morning. Both sides, east and west of the picket fence, corner on the main traveled walk. There was a ridge all along there. This ridge of ice and snow was four or five inches in depth; might be eighteen inches wide in front of the Lepin Hotel. The main walk ran down in front of the storm-house. Cross-examined: There was ice and snow there.”

William Sheesby “lived in Hastings that winter, at the Lepin Hotel. In front of the Lepin Hotel the walk was mostly clean, but after going near the corner of the hotel, from there east it began and got uneven with ice and snow. It had been that way several days,--three days and from that to a week. I remember from knowing he was hurt there, and from slipping a good many times myself on the walk. Cross-examined: The snow was deposited at the east corner, and also at the west corner. They had made an attempt to sweep it off the walk in front of the hotel. It was partly done.”

T. R. Pierson: “There was some ice and snow from the door of the hotel to a line east of the hotel. There was some ice and snow, I think, within four feet of the door; and along the walk in front of and south of the door there was a ridge of ice perhaps eighteen inches wide. It could not be more than two or three inches deep from the south line of the hotel. In front of the hotel the snow had not been cleaned off at all. No one lived there very much. In front of the hotel, and the walk leading back, was cleaned off. The snow had been there more than three days,--somewhere near a week. Immediately at the south-east corner of the hotel building the walk was in good condition, and no down spout or flow of water at the south-east corner. The eave spout came down in the back part of the house. In front of the Lepin building the sidewalk and that attached to the building altogether was nine feet wide, I think,--the whole walk. The ice and snow was about in the center of the walk belonging to the city. The storm-door extends out from the hotel about four feet. Cross-examined: The hotel covers about forty feet front. It stands back three or four feet from the street line. The ridge of ice in front of the house was as near the center of the sidewalk as a man generally walks. There was snow-bank in front of the hotel drifted near the fence. When I first saw him he was leaning against the corner of the hotel. My men were only instructed to shovel the snow away from the front of the hotel.”

Van Sickle: “I went out to see the place where it was reported he had fallen, and found the sidewalk immediately in front of the hotel and eastward a little way slippery. There had been a fall of snow before that, and it had been leaking down on the path from above, and leaving that compact snow on the sidewalk. [The full width of the walk, both public as well as their own, in front of the Lepin Hotel, was covered by a roof and awning or a veranda.] It would be represented by an ordinary footpath in the snow by a number of people passing in a single file, and then the snow cleaned away at the sides, leaving the path that was made. Cross-examined: I examined in the evening I was called to him, and looked it over the next morning. The path that was left was in front of the Lepin Hotel, and made by going out east of the storm-house diagonally from the sidewalk proper. Upon the sidewalk proper I hardly think there was much. Redirect: Between the veranda or awning corner and the fence corner there was a continuation of that kind of walk I have described, and right along east and west of the fence corner.”

Charles Foxworthy: “I...