Lynn v. Metropolitan Utilities Dist., 85-575

• Court: Supreme Court of Nebraska
• Writing for the Court: KRIVOSHA; SHANAHAN
• Citation: 403 N.W.2d 335,225 Neb. 121
• Parties: Geraldine LYNN, Appellant, v. METROPOLITAN UTILITIES DISTRICT, a Nebraska Corporation, Appellee.
• Docket Number: No. 85-575,85-575
• Decision Date: 03 April 1987

Page 335

403 N.W.2d 335 225 Neb. 121 Geraldine LYNN, Appellant,
v.
METROPOLITAN UTILITIES DISTRICT, a Nebraska Corporation, Appellee. No. 85-575. Supreme Court of Nebraska. April 3, 1987.

Page 336

Syllabus by the Court

1. Political Subdivisions Tort Claims Act: Appeal and Error. A district court's factual findings in a case brought under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983), will not be set aside unless such findings are clearly incorrect.

2. Trial: Evidence: Witnesses. In a bench trial of a law action, the court, as the "trier of fact," is the sole judge of the credibility of witnesses and the weight to be given their testimony. Among the factors entering into the trial court's resolution of any conflicts of evidence are such items as the respective interests of the parties in the litigation; the demeanor of witnesses, including the parties, while testifying before the court; the apparent fairness exhibited by witnesses; the extent to which testimony of various witnesses is corroborated; and the reasonableness or unreasonableness of testimony from the witnesses.

3. Judgments: Appeal and Error. In reviewing a judgment awarded in a bench trial, the Supreme Court does not reweigh evidence but considers the judgment in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

4. Negligence: Proof. In the face of the defense of contributory negligence and to recover on a claim of negligence, a plaintiff must prove the defendant's negligence and must be free from contributory negligence more than slight in comparison with the defendant's negligence.

5. Negligence: Proof. Contributory negligence is an affirmative defense which must be proved by the party asserting such defense.

6. Negligence: Pedestrians. A pedestrian on a public thoroughfare must exercise the degree of care that an ordinarily prudent person would exercise under similar circumstances.

7. Negligence. To determine whether conduct constitutes negligence, the invariable standard is reasonable care, although reasonable care is directly proportional to the danger inherent in conduct and may vary depending on the circumstances.

8. Negligence. Entering a darkened area requires one to exercise caution greater than that ordinarily required in an illuminated area.

9. Negligence. One who is capable of understanding and discretion but fails to exercise ordinary care and prudence to avoid obvious dangers is negligent or contributorily negligent.

10. Negligence: Pedestrians: Highways. A pedestrian on a street or highway must use reasonable care to discover and avoid obvious defects or obstructions involving such street or highway. A pedestrian's failure to exercise reasonable care to discover and avoid an obvious defect or obstruction in the path or course traveled is, ordinarily, contributory negligence.

11. Negligence. Generally, one is contributorily negligent if (1) he breaches the duty imposed upon him by the law to protect himself from injury; (2) his actions [225 Neb. 122]

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concur and cooperate with actionable negligence of the defendant; and (3) his actions contribute to his injuries as a proximate cause.

12. Negligence: Pedestrians: Highways. Whether a pedestrian who walks on a street and falls as the result of the street's condition is contributorily negligent is, ordinarily, a question of fact.

Michael Lehan and William Latka III, Omaha, for appellant.

Thomas A. Wurtz and Daniel G. Crouchley, Omaha, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

SHANAHAN, Justice.

Geraldine Lynn appeals the judgment for Metropolitan Utilities District (M.U.D.) in a negligence action, which she brought pursuant to the provisions of the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983). We affirm.

In Omaha, at approximately 5:25 a.m. on January 28, 1980, Geraldine Lynn parked her car, as she had done "for four years," on the west side of 22d Street and began walking to work at Northwestern Bell Telephone Company, which was located four blocks away at 19th and Douglas Streets. Lynn regularly followed the same pedestrian course from her parking place on 22d Street to the Bell building.

Running north and south, 22d Street intersected with the north side of Dodge Street but did not cross Dodge, a one-way thoroughfare with four lanes for traffic and a parking lane adjacent to the south curb. Although there was a sidewalk on each side of Dodge, there was no crosswalk at the intersection of 22d and Dodge Streets. Two blocks east, at the intersection of 20th and Dodge Streets, there was a crosswalk.

There were no other pedestrians or traffic regarding Dodge Street when Lynn reached the 22d Street intersection. It was dark that morning, a light snow was falling, and the temperature was near 17? . The condition of illumination from street lights on Dodge Street is undisclosed.

Leaving the corner of 22d and Dodge Streets, Lynn [225 Neb. 123] commenced walking diagonally in a southeasterly direction across Dodge. As she was approaching the curb on the south side of Dodge Street, Lynn stepped into a hole in the street and fell. Lynn fell "suddenly ... just fell straight down" and "jammed" her leg into a hole.

The hole, located 3 to 4 feet from the south curb of Dodge Street, was a gas valve box, owned by M.U.D. and encasing a low-pressure valve utilized to regulate the flow of gas. The valve in the box was located 6 feet below the surface of Dodge Street. Ordinarily, a cast-iron cover lay over the 8-inch-wide valve box, but was missing the morning when Lynn fell. The edge of the valve box was "flush" with the concrete surface of Dodge Street. Before Lynn's accident, M.U.D. had no actual notice that the cover was missing from the valve box, installed in 1948 but never inspected after 1958.

Lynn testified that it was "very dark" at the site of the hole, and that she had "walked over" the gas valve box before the morning of the accident, but denied prior knowledge that the valve box was at the site of her fall. According to Lynn, the "hole was never there all the times that I had walked that path," and "I had no idea what I had stepped into."

As the result of her fall into the valve box, Lynn sustained a severe laceration of her lower left leg, was hospitalized, and eventually retired from employment at Bell because persistent pain from the leg injury prevented her working.

In her petition, Lynn made specific allegations...