Nothdurft v. City of Lincoln

• Decision Date: 22 November 1905
• Citation: 75 Neb. 76,105 N.W. 1084
• Parties: NOTHDURFT v. CITY OF LINCOLN.
• Court: Nebraska Supreme Court

75 Neb. 76

105 N.W. 1084

NOTHDURFT

v.CITY OF LINCOLN.

Supreme Court of Nebraska.

Nov. 22, 1905.

Syllabus by the Court.

The provisions of the statute in force February, 1900, construed, and held, first, to require a claimant of unliquidated damages against a city of the first class to file with the city clerk, within three months from the time the cause of action accrued, a statement in writing, containing, among other things, the full name of the claimant; second, that in an action against such a city for unliquidated damages, where the petition did not show the filing of the statement complying with the provisions of the statute, the petition failed to state a cause of action.

Commissioners' Opinion. Department No. 2. Error to District Court, Lancaster County; Cornish, Judge.

Action by John Nothdurft against the city of Lincoln. Judgment for defendant, and plaintiff brings error. Affirmed.Fredk. Shepherd, for plaintiff in error.

E. C. Strode, for defendant in error.

JACKSON, C.

On January 18, 1904, the plaintiff in error instituted an action in the district court of Lancaster county against the defendant in error to recover damages on account of an injury alleged to have been sustained by his wife on a defective sidewalk on January 22, 1900. The allegations of the petition important to the inquiry are: “That on the 12th day of February, 1900, the plaintiff filed and caused to be filed, for the purpose of giving notice of the accident on his account and for his own benefit, as well as on the account and benefit of his wife, in the office of the city clerk in the city of Lincoln, Lancaster county, Neb., a statement in writing, giving full name, and the time, place, nature, circumstances, and cause of the injury or damage complained of. * * * And afterwards, on or about the 2d day of January, 1904, the plaintiff filed in the office of the city clerk of said city of Lincoln a statement of the amount of his claim, giving his full name as claimant, and the time, place, nature, circumstances, and cause of the injury or damage complained of.”

A copy of the notice filed February 12, 1900, is attached to the petition, and is as follows:

“Lincoln, Nebraska, February 12, 1900.

To the Honorable Mayor and City Council of the City of Lincoln, in Lancaster County, Nebraska--Gentlemen: Pursuant to section 36, c. 13a, art. 1, of the Compiled Statutes of Nebraska for the year 1897, I herewith present to you my claim for damage against the city of Lincoln by reason of the accident and injuries hereinafter more fully and particularly described. On the afternoon of Tuesday, January 23d, 1900, at about 3 o'clock p. m., while I was passing along and upon the sidewalk on the north side of F street, between Eighth and Ninth streets in the city of Lincoln, Neb., in front of the lot on which is located a residence known as 820 F street, being the sidewalk in front of lot No. 9 in block No. 162 in said city, I was tripped by a loose and broken board in said sidewalk, and fell heavily upon said sidewalk, and thereby seriously injured my right arm, right leg, hip, back, and right side of my face, and my right eye, and broke, tore, and lacerated the cords, ligaments, and muscles of my right arm, right leg, hip, and back, and severely sprained and wrenched said cords, ligaments, and muscles, and bruised and injured the nerves of the right leg, hip, back, and right eye, thereby permanently injuring said members. That said injuries were caused by the impassable and dangerous condition of said sidewalk at the place aforesaid, and without negligence on my part; said sidewalk being then and there an old, dilapidated, and partially worn-out board walk, with rotten stringers and boards, and on which were many loose and broken boards, and many holes through the same where boards had been removed, making said sidewalk uneven, impassable, and unsafe, thereby causing me to trip and fall and sustain injuries, to my damage, caused thereby and following therefrom, in the sum of $5,000. That said sidewalk was in said dilapidated, unsafe, and impassable condition, and allowed to remain so, for more than three months prior to said 23d day of January, 1900, and by reason of the aforesaid injuries I claim of said city of Lincoln damage in the sum of five thousand dollars ($5,000).

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