Johnson County v. Carmen

• Decision Date: 21 April 1904
• Docket Number: 13,488
• Citation: 99 N.W. 502,71 Neb. 682
• Parties: JOHNSON COUNTY v. M. H. CARMEN, ADMINISTRATOR
• Court: Nebraska Supreme Court

99 N.W. 502

71 Neb. 682

JOHNSON COUNTY v. M. H. CARMEN, ADMINISTRATOR

No. 13,488

Supreme Court of Nebraska

April 21, 1904

ERROR to the district court for Pawnee county: JOHN S. STULL JUDGE. Reversed.

REVERSED.

Jay C Moore, Wilson & Brown and Hugh La Master, for plaintiff in error.

George A. Adams and S. P. Davidson, contra.

DUFFIE C. LETTON and KIRKPATRICK, CC., concur.

OPINION

DUFFIE, C.

July 25, 1901, Joseph B. Gooch was killed, while attempting to cross a bridge with his traction engine. The bridge gave way and, in the fall, the deceased was caught between the engine and the tender. M. H. Carmen, administrator of his estate, brought this action to recover for his death, alleging that the county authorities were negligent in allowing the bridge to become out of repair and unsafe. The answer denies negligence on the part of the county, and alleges that the condition of the bridge was unknown to the county officials although all due care and diligence had been exercised by them; that the defect was of such a nature that it could not be ascertained by the exercise of care and diligence; that deceased was negligent in going upon the bridge with such an extraordinary load, and in failing to take proper precautions by planking the bridge and detaching the tender, and by running the engine across the bridge by its own power instead of using horses to pull it across. The reply was a general denial. The petition does not point out any particular defect in the bridge, but alleges that it was "out of repair and unsafe." Error is alleged in the refusal of the court to require a more specific statement in the petition, pointing out wherein the county and its officers were negligent, and wherein the bridge was out of repair and unsafe. In so far as the motion required the plaintiff below to show in his petition in what particular the bridge was out of repair and unsafe, we think it should have been sustained. Under our system of pleading, the facts are to be stated, in order that the party proceeded against may know what facts his adversary relies on and against which he must defend. Board of Commissioners v. Coffman, 60 Ohio St. 527, 48 L. R. A. 455; Tolles v. Meyers, 65 Neb. 704, 91 N.W. 505. If the bridge was out of repair and unsafe, and the county commissioners had knowledge of this fact, or such condition of the bridge was discernible, or could have been ascertained, by reasonable care and inspection, and so continued for such a length of time as to raise a presumption of knowledge, these facts show negligence upon their part in not repairing it, and the petition, so far as charging negligence, would be sufficient.

It is next urged that the court erred in not sustaining the objection to two of the jurors called in the case. We have read their examination with care, and we can not say that there was prejudicial error in retaining them upon the panel. They are apparently men of intelligence and candor, who stated that they would follow the direction of the court as to the law of the case, and, while they expressed some feeling and sympathy for the plaintiff, it is not unnatural indeed it is human nature, that disinterested men should sympathize with the wife and children of a deceased husband and be inclined to lean to their support, rather than to that of a county by whose negligence it is charged the death of the husband and father was occasioned; at the same time, when an apparently candid juror states that he will observe the instructions of the court and be governed in his verdict by the law and the evidence, and that he has no preconceived opinion of the case which would prevent his doing so, no...