Gielen v. City of Florence

• Decision Date: 12 November 1913
• Docket Number: 17,354
• Citation: 143 N.W. 932,94 Neb. 619
• Parties: KATHERINE GIELEN, APPELLEE, v. CITY OF FLORENCE, APPELLANT
• Court: Nebraska Supreme Court

143 N.W. 932

94 Neb. 619

KATHERINE GIELEN, APPELLEE, v. CITY OF FLORENCE, APPELLANT

No. 17,354

Supreme Court of Nebraska

November 12, 1913

APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Affirmed.

AFFIRMED.

C. W Haller and C. E. Herring, for appellant.

W. W Slabaugh, contra.

ROSE, J. BARNES, FAWCETT and HAMER, JJ., not sitting.

OPINION

ROSE, J.

While walking on a sidewalk in Florence, plaintiff stumbled on a pile of eight or ten bricks and was severely injured. This is an action against the city to recover resulting damages in the sum of $ 3,000. From judgment on a verdict in favor of plaintiff for $ 2,900, defendant has appealed.

The principal ground urged for a reversal is that the verdict is contrary to the evidence. In discussing this assignment, defendant asserts that there is no disputed question of fact; that the obstruction of the sidewalk was a necessary one preparatory to paving; that plaintiff abandoned a safe and direct route to her destination on the evening of the accident, and that, with full knowledge of the existing conditions at the place of the injury, she deliberately selected the route leading thereto and assumed the incidental risks, being guilty of contributory negligence.

The accident occurred on Main street after dark, March 31, 1910. For several months preceding that date all of the sidewalk along the block where plaintiff was injured, except a space about 18 inches wide, had been covered with a solid row of bricks four or five feet high. They had been piled there by a city contractor preparatory to paving Main street, which was temporarily closed between the curbs. During the winter single bricks were scattered along the unoccupied portion of the sidewalk, though it had been left open and was continually used by pedestrians. In the daytime, two or three weeks before plaintiff was injured, she had used the same sidewalk and had observed the conditions described. In addition, there is proof of the following facts: While walking carefully on the sidewalk at night plaintiff stumbled on a pile of eight or ten bricks. The pile was a new obstruction of which she had no knowledge. She could not see it at night, because it was in the shadow of the row of bricks which partially covered the sidewalk. It was not there when she last passed that place. It had been allowed to remain on the sidewalk about two weeks. In view of such evidence, did the obstruction remain on the sidewalk a length of time sufficient to charge the city with notice? Was the city negligent in failing to restore the sidewalk to a reasonably safe condition for travel before plaintiff was injured? That these questions were for the jury is shown by many adjudicated cases. Smid v. Mayor, 17 Jones & S. (N.Y.) 126; Kunz v. City of Troy, 48 Hun 619, 1 N.Y.S. 596; Foels v. Town of Tonawanda, 75 Hun (N.Y.) 363, 27 N.Y.S. 113; Briel v....