Goddard v. City of Lincoln

• Decision Date: 03 July 1903
• Docket Number: 12,936
• Citation: 96 N.W. 273,69 Neb. 594
• Parties: ISAAC N. GODDARD, ADMINISTRATOR OF THE ESTATE OF ARTHUR E. GODDARD, DECEASED, v. CITY OF LINCOLN
• Court: Nebraska Supreme Court

96 N.W. 273

69 Neb. 594

ISAAC N. GODDARD, ADMINISTRATOR OF THE ESTATE OF ARTHUR E. GODDARD, DECEASED, v. CITY OF LINCOLN

No. 12,936

Supreme Court of Nebraska

July 3, 1903

ERROR to the district court for Lancaster county: ALBERT J CORNISH, DISTRICT JUDGE. Affirmed.

AFFIRMED.

George A. Adams, for plaintiff in error.

Edmund C. Strode and D. J. Fleharty, contra.

ALBERT C. BARNES and GLANVILLE, CC., concur.

OPINION

ALBERT, C.

The plaintiff filed a petition against the defendant, which, omitting the formal parts, is as follows:

"The plaintiff complaining of the defendant, the City of Lincoln, says:

"1. That the defendant, the City of Lincoln, is a corporation organized and acting under the laws of the state of Nebraska, and is a city of the first class.

"2. That the plaintiff, Isaac N. Goddard, was on the -- day of May, 1901, by the county court of Lancaster county, Nebraska, appointed administrator of the estate of Arthur E. Goddard, deceased, who died in the county of Lancaster and state of Nebraska, intestate, on or about the 6th day of May, 1901.

"3. That heretofore, to wit; on the 6th day of May, 1901, the decedent, Arthur E. Goddard, being then of the age of 15 years, and unmarried, was passing along and upon the sidewalk on the south side of R street, in the said city of Lincoln, Nebraska, between Nineteenth and Twentieth streets of the said city, and in front of lot 5, block 8, in Kinney's O street addition to the said City of Lincoln, Nebraska, and in front of a store known as 1903 R street, at which point, the said sidewalk was, at said time, badly and dangerously out of repair, the same being constructed of a wooden substance, being a board sidewalk, constructed originally by the laying of wooden stringers lengthwise along said sidewalk and the nailing of boards crosswise of said stringers along said sidewalk space; that said sidewalk was, at said time and place, to wit; May 6, 1901, and in front of lot 5, block 8, Kinney's O street addition to said City of Lincoln, Nebraska, and in front of the store building known as 1903 R street, in said city, badly out of repair, the boards of the same, and on the same, and constituting a part of the same, at said time and place, being loose and laying loose upon said stringers, and one or two boards being entirely removed therefrom, so that said sidewalk was, at said time and place, in an unsafe and dangerous condition and had so been in such unsafe and dangerous condition for a long time prior thereto, of all of which the said City of Lincoln had full knowledge; that on said day, and at said place, the said decedent, Arthur E. Goddard, while lawfully and rightfully passing along and over said sidewalk, without any fault or negligence of his, or without any fault or negligence of the plaintiff, Isaac N. Goddard, stepped into the hole in said sidewalk, and because of said unsafe condition of the same and without any fault of his or his said father, plaintiff herein, was thrown violently and forcibly to the ground, and upon said sidewalk, so that he was seriously, dangerously and mortally injured, and from the effects of which he soon thereafter died.

"That the death of said Arthur E. Goddard was caused by and through the negligence of the said defendant, the City of Lincoln, without any fault or negligence on his part or on the part of his father, Isaac N. Goddard, who sues herein as administrator of his estate.

"That said decedent, Arthur E. Goddard, was a bright, healthy, intelligent and industrious boy; that his services were worth to his father the sum of $ 500 per year; that the plaintiff herein has been put to a large expense in the burial and funeral services of said decedent to wit; the sum of $ 150.

"That by reason of the wrongful death of the said Arthur E. Goddard, as above stated, the plaintiff has been damaged because of the loss of his service, society and expense of burial, etc., in the sum of $ 5,000.

"That after the death of the said Arthur E. Goddard to wit; on the -- day of May, 1901, and within thirty days from the date of his death and from the date of said injury causing his death, this plaintiff filed with the mayor and city council of said City of Lincoln, Nebraska, defendant herein, a claim for said damages in the sum and amount herein sued for, and the said city, defendant herein, failed and refused to allow or pay the same or any part thereof."

The defendant interposed a general demurrer, which was sustained by the court; the plaintiff elected to stand on his petition, and judgment was given for the defendant. The plaintiff brings error.

We think the demurrer was properly sustained. A city is a creature of the legislature; its rights, duties and liabilities are to be measured by the statute under which it exists. Early in the history of this state, a city was held liable for injuries resulting from the defective condition of its streets, on the ground that it had exclusive control of such streets, and the legislature had placed ample means at its disposal to maintain its streets in a safe condition. City of Omaha v. Olmstead, 5 Neb. 446. The principle announced in that case has since been frequently applied. City of Aurora v. Cox, 43 Neb. 727, 62 N.W. 66; City of Lincoln v. O'Brien, 56 Neb. 761, 77 N.W. 76; City of Beatrice v. Reid, 41 Neb. 214, 59 N.W. 770. As the liability in such cases must rest on some express or implied provision of the statute, it is clear that the legislature may place such limitations upon it as it may deem proper, or, for that matter, take it away entirely. The defendant is a city of the first class, and is governed by the provisions of chapter 16, laws of 1901, which is chapter 13 of the Compiled Statutes of 1901. Section 110, article 1 (Annotated Statutes, 7809), of that chapter is as follows:

"Cities of the first class shall be absolutely exempt from liability for damages or...