Nemaha County, Neb. v. Harmon

• Decision Date: 07 May 1923
• Docket Number: 6184.
• Citation: Nemaha County, Neb. v. Harmon, 289 F. 795 (8th Cir. 1923)
• Parties: NEMAHA COUNTY, Neb., v. HARMON.
• Court: U.S. Court of Appeals — Eighth Circuit

289 F. 795

NEMAHA COUNTY, Neb., v. HARMON.

No. 6184.

United States Court of Appeals, Eighth Circuit.

May 7, 1923

Ernest F. Armstrong, of Auburn, Neb. (Jacob Fawcett, of Lincoln Neb., and R. F. Neal, of Auburn, Neb., on the brief), for plaintiff in error.

G. E Hager, of Lincoln, Neb., for defendant in error.

Before STONE, LEWIS, and KENYON, Circuit Judges.

LEWIS Circuit Judge.

This action was brought by defendant in error as administrator of the estate of a deceased minor child of W. Burch Harmon and Fairy P. Harmon, to recover damages on account of the child's death due, as charged, to the negligence of plaintiff in error in the construction and maintenance of a bridge along a public highway over an artificial stream about 8 feet deep and 34 feet wide. After dark on the evening of May 22, 1920, the father and mother took the child with them in an automobile to go to a town not far away for the purpose of buying groceries. There had been a heavy rain just before they started. When they reached the bridge a part of it had been carried out by flood water, but that condition being unobserved the auto was precipitated into the stream and the child drowned. The defense was a denial of negligence contributory negligence of both father and mother in not discovering the dangerous condition of the bridge before driving onto it, and that the dangerous condition of it was caused by an unusual and unprecedented rainfall which could not be anticipated and guarded against. In submitting the case to the jury the court confined its consideration to the charge 'that the county negligently allowed some of the piles under the south end of the main span of the bridge to be merely resting on the ground at the bottom end of the piles and to be insufficiently imbedded in the ground, and negligently failed to brace the piles with sway braces of proper or sufficient fastenings.'

It is sufficient to say that on all issues the testimony was in serious conflict, and as to each it was the exclusive duty of the jury to decide. This disposes of the first alleged error argued and relied upon, viz: that the court should have instructed a verdict for plaintiff in error at the conclusion of the testimony. Furthermore, we do not find in the record that the court was asked to so instruct. The next assigned error argued and relied on is that the court submitted to the jury the question of comparative negligence. In doing so the...