Lyons v. Greeley County

• Decision Date: 30 January 1914
• Docket Number: 17,515
• Citation: 145 N.W. 350,95 Neb. 104
• Parties: WILLIAM O. LYONS, ADMINISTRATOR, APPELLANT, v. GREELEY COUNTY, APPELLEE
• Court: Nebraska Supreme Court

145 N.W. 350

95 Neb. 104

WILLIAM O. LYONS, ADMINISTRATOR, APPELLANT, v. GREELEY COUNTY, APPELLEE

No. 17,515

Supreme Court of Nebraska

January 30, 1914

APPEAL from the district court for Greeley county: JAMES R. HANNA JUDGE. Affirmed.

AFFIRMED.

H. C Vail, for appellant.

J. P Boler and J. R. Swain, contra.

REESE, C. J. LETTON, FAWCETT and HAMER, JJ., not sitting.

OPINION

REESE, C. J.

This is an appeal from a judgment rendered by the district court for Greeley county. Plaintiff sued as the administrator of the estate of his father, Samuel W. Lyons, deceased, alleging that decedent lost his life by reason of a defective bridge across Freeman creek in the county of Greeley, defendant. The defect complained of is that the side railing of the bridge was defective, rotten, decayed, and not in a safe condition, and that by reason thereof the decedent was precipitated into the water below and lost his life. Some objections are made to the averments of the petition, which are not deemed necessary to notice. There was a jury trial, resulting in a verdict and judgment in favor of defendant. Plaintiff appeals.

The facts shown as to the cause of the death of Samuel W. Lyons are very meager. It appears that on the morning of the day of his decease he took a horse and buggy and drove to Freeman creek, stopping at or near where the creek is spanned by a bridge. Evidently he unhitched his horse and left his buggy near the end of the bridge. The purpose of his trip was to engage in fishing in the creek. During the forenoon his horse, by some means, escaped, and he went to a near-by neighbor's house and telephoned for his son, the plaintiff, to come for him, as his horse had escaped. This was perhaps not far from ten o'clock in the forenoon, and was the last that was seen of him alive. When his son arrived, which was before noon, he found the buggy all packed ready for the return home, but the horse was gone. An examination disclosed decedent's hat in or near the water, and one length of the side railings of the bridge gone from its place and floating in the water some little distance below the bridge. His fish bait and some few fish were found upon the floor of the bridge, and his fishing rod was lying on the floor; the end to which the line was fastened projecting over the opposite side of the bridge with the baited hook in the water. The floor of the bridge was about seven feet above the surface of the water, which at that point was seven to eight feet deep. After an extended search the body was found under the side of the bridge and immediately under the place of the missing side rail. There is some doubt as to whether decedent met his death from drowning or from injuries found upon his head. If the latter it might be inferred that in falling his head struck some of the bridge timbers just beneath, producing unconsciousness, or, practically, death. The testimony of the physician indicates that certain signs of death by drowning alone were absent. There is no proof that death was caused by heart failure or from any other natural cause. While decedent was about 69 years of age, he was shown to be a healthy, robust man for one of his age, and it is argued that death was not from any natural cause. It is shown that the bridge was of considerable length, and that the span of railing, which was broken, or had fallen away, was inadequately fastened, and the...