McCollum v. City of South Omaha

• Decision Date: 07 May 1909
• Docket Number: 15,685
• Citation: 121 N.W. 438,84 Neb. 413
• Parties: THOMAS McCOLLUM, APPELLANT, v. CITY OF SOUTH OMAHA, APPELLEE
• Court: Nebraska Supreme Court

121 N.W. 438

84 Neb. 413

THOMAS McCOLLUM, APPELLANT, v. CITY OF SOUTH OMAHA, APPELLEE

No. 15,685

Supreme Court of Nebraska

May 7, 1909

APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Affirmed.

AFFIRMED.

J. W Eller and Benjamin S. Baker, for appellant.

S.L Winters, contra.

ROSE, J. FAWCETT, J., dissenting.

OPINION

ROSE, J.

February 16, 1906, plaintiff slipped and fell on ice and snow which had been allowed to accumulate on a sidewalk in the city of South Omaha, and brought this suit September 7, 1906, to recover resulting damages in the sum of $ 30,500 for personal injuries. In his petition he alleged that by his fall he was instantly rendered unconscious, and that he remained in that condition for more than 20 days. He failed to give the city notice of his injury within the statutory period of 20 days, and for that reason the trial court sustained a demurrer to his petition. Refusing to plead further, his action was dismissed, and he presents his case here on appeal.

1. The order of dismissal is said to be erroneous because notice was not required under the facts pleaded. At the time of the accident defendant's charter contained the following provision: "The city shall not be liable for damages arising from defective streets, alleys, sidewalks, public parks or other public places within the city, unless a notice in writing of the accident and injury complained of is filed with the city clerk within twenty (20) days after the date of the injury." Comp. St. 1905, ch. 13, art. II, sec. 107. Plaintiff contends that the accumulation of snow and ice on the sidewalk was an obstruction, and not a defect, within the meaning of the statute quoted, and that therefore notice was unnecessary. In determining the meaning of "defective," the purpose of the enactment in which the word is used should be considered. The lawmakers in requiring prompt notice of claims for damages arising from defective sidewalks evidently had in mind the necessity of information and the opportunity of investigation at a time when knowledge of the facts relating to accidents can be ascertained. Information of this character is essential to the interests of the city in adjusting claims and in defending suits. Such notice and information are just as important in cases where accidents are caused by accumulations of ice and snow on sidewalks as in other cases. There is nothing in the language of the act to indicate the word was used in a restrictive sense inapplicable to obstructions of ice and snow. In addition, many adjudications show that the word "defective" as applied to sidewalks and streets may include obstructions, and that it is not limited to inherent imperfections, as argued by plaintiff. In Blivens v. Sioux City, 85 Iowa 346, 52 N.W. 246, a dangerous bill-board between a sidewalk and abutting property was held to be a defect in the sidewalk. Obstructions and banners have been held to be defects in the streets. Hume v. Mayor, 74 N.Y. 264; Champlin v. Village of Penn Yan, 34 Hun (N.Y.) 33; Davis v. Hill, 41 N.H. 329; Carpenter v. Town of Rolling, 107 Wis. 559, 83 N.W. 953; Whitney v. Town of Ticonderoga, 53 Hun (N.Y.) 214, 6 N.Y.S. 844; Ring v. City of Cohoes, 77 N.Y. 83; Eggleston v. Columbia Turnpike Road, 18 Hun (N.Y.) 146. Plaintiff's understanding of the word "defective" as used in the statute cannot therefore be adopted. In holding that the accumulation of ice and snow was a defect in the sidewalk within the meaning of the charter, the trial court did not err.

2. The fact that plaintiff's fall deprived him of consciousness for more than 20 days, as admitted by the demurrer, is urged as an excuse for his failure to give the statutory notice within that time. This question is not an open one. It was presented in Schmidt v. City of Fremont, 70 Neb 577, 97 N.W. 830. In that case plaintiff insisted that, by reason of incapacity resulting from his injury, he was not required to give the notice within the statutory period, and invoked the rule that physical...