O'Loughlin v. City of Pawnee City

• Decision Date: 09 January 1911
• Docket Number: 16,215
• Citation: 129 N.W. 271,88 Neb. 244
• Parties: ELLA O'LOUGHLIN, APPELLEE, v. CITY OF PAWNEE CITY, APPELLANT
• Court: Nebraska Supreme Court

129 N.W. 271

88 Neb. 244

ELLA O'LOUGHLIN, APPELLEE, v. CITY OF PAWNEE CITY, APPELLANT

No. 16,215

Supreme Court of Nebraska

January 9, 1911

APPEAL from the district court for Pawnee county: JOHN B. RAPER JUDGE. Affirmed.

AFFIRMED.

Story & Story, for appellant.

J. C Dort, contra.

OPINION

ROSE, J.

For personal injuries caused by falling on a defective sidewalk plaintiff recovered a judgment against defendant for $ 1,000, and the latter has appealed.

Under issues properly raised by the pleadings, there is proof tending to show: The sidewalk on which plaintiff was injured had been constructed on the surface of the ground by nailing boards across stringers. Some of the boards were loose, some were missing and others were broken. When walking on the sidewalk, plaintiff saw the condition of the boards ahead of her, and in attempting to get off was thrown by a loose board. Her right shoulder was dislocated, causing a laceration of the capsule of the shoulder joint. The injuries were permanent, limiting the action of the joint and resulting in atrophy of some of the muscles of the shoulder and arm. She was a professional nurse and her earning capacity as such was permanently impaired.

Insufficiency of the evidence to sustain the verdict is the first point argued. While the testimony is conflicting in some respects, a careful consideration of all the proofs adduced by both parties had led to the conclusion that the jury were justified in finding from the evidence that plaintiff, without negligence on her part, was injured through the negligence of defendant in failing to keep the sidewalk in a reasonably safe condition for travel at the place of the injury, and that the damages sustained amounted to $ 1,000.

Defendant insists it was not negligent, for the reason that the sidewalk was on the outskirts of the city; that the accident occurred near the end of the sidewalk where it was not frequently used by the public; that the sidewalk had been repaired two months before plaintiff was injured and that there was no subsequent notice of the defects. This argument is untenable for the following reasons: The jury found in favor of the plaintiff on proof that the walk was within the city limits, that the repairs were insufficient, and that after they were made defendant had been notified of the unsafe condition of the walk. Conceding the sidewalk was on the outskirts of the city and infrequently used by the public, those facts would not justify defendant's failure to make repairs. City of Ord v. Nash, 50 Neb. 335 69 N.W. 964; City of South Omaha v. Powell, 50 Neb. 798, 70 N.W. 391. Besides, there is proof to justify a finding that the walk at the place of the injury had been in an unsafe condition for a year or more. This was sufficient to charge defendant with notice of the defects. City of Lincoln v. Smith, 28 Neb....