Orleans v. Perry

• Decision Date: 22 November 1888
• Parties: VILLAGE OF ORLEANS v. PERRY.
• Court: Nebraska Supreme Court

24 Neb. 831

40 N.W. 417

VILLAGE OF ORLEANS

v.PERRY.

Supreme Court of Nebraska.

November 22, 1888.

Syllabus by the Court.

Where, in an action for damages resulting from a fall into an excavation in a sidewalk, it was shown by the evidence that the plaintiff knew of the excavation across the sidewalk, and that on a dark night he attempted to pass that way, and, remembering the defect, attempted to pass around it, but by reason of misjuding the distance, and the excavation being unguarded, he fell into it, and was injured, it was held that the question of his contributory negligence was for the jury to decide, under all the circumstances, as shown by the evidence.¹

The modification of instructions set out in the opinion at length held no error.

Verdict of the jury held to be excessive, and judgment reversed, unless defendant in error entered a remittitur of $2,000 within 30 days.

Error to district court, Harlan county; GASLIN, Judge.

Action by George S. Perry against the Village of Orleans to recover damages for personal injuries. Judgment for plaintiff, and defendant brings error.L. H. Kent and Lamb, Ricketts & Wilson, for plaintiff in error.

Case & McNevy, for defendant in error.

REESE, C. J.

The original action in this case was brought by defendant in error against plaintiff in error for the recovery of damages for a personal injury received from falling into an excavation in the sidewalk, made by the owners of abutting property during the course of the erection of a building. The excavation for the area extended nine feet into the street, and was of the width of the building then under construction. The sidewalk was 12 feet wide at the point where the excavation was made. The injury is alleged to have occurred on the 9th day of August, 1888. The village, by its answer, denied generally the allegations of the petition, alleging affirmatively that whatever injury defendant in error sustained was caused by his own negligence. The cause was tried to a jury, who found a verdict in favor of defendant in error, and assessed his damages at $5,000. Plaintiff in error brings the cause into this court, by proceedings in error, for review. Three questions are presented by the brief of plaintiff in error: First, that defendant's injury was the result of his own negligence; second, that the court erred in modifying certain instructions requested by plaintiff in error, and giving them, as modified, over its objections; and, third, that the verdict is excessive, and appears to have been given under the influence of passion and prejudice, and is not sustained by the evidence or the instructions of the court. We will briefly notice these contentions in the order in which they are presented.

It appears from the evidence that defendant in error resided in the village of Orleans, and on the evening in question was in one of the places of business near the excavation referred to, when a storm came up, and it commenced to rain. The place where he was prior to starting home was one or two lots south of the one in front of which the excavation was made, the door of which was between 30 and 40 feet from the excavation. He knew of the excavation, having passed it frequently, and knew that it was dangerous, or at least had seen it when it was not sufficiently protected. When he started home it was quite dark. When nearing the excavation he changed his course so as to pass around it, as he supposed, but, to use his own language, he “made a misjudgment on the distance, and, instead of going around it, stepped over into it.” The distance to the bottom was about eight feet, where a number of loose rocks and stones were lying, and he received the injury by falling and striking upon them. The question of the negligence of defendant in error was submitted to the jury, with proper instructions for their guidance. The question here presented is whether the facts stated by defendant in error and his witnesses show such a degree of negligence as to require the trial court to have virtually withdrawn the question from the jury, or whether such a condition was shown as would require the court to submit this question of fact to them under proper instructions. We think the court did right in referring the whole question of the negligence of defendant in error to the jury for their decision. In order to justify the court in refusing to submit the question of negligence to the jury, it must have appeared that, as matter of law, contributory negligence was conclusively shown. Maultby v. Leavenworth, 28 Kan. 745. And the fact that defendant in error was aware of the excavation, and tried to pass around it, although competent for the jury to consider as bearing upon the question of negligence, is not of itself conclusive proof of such negligence as would preclude his recovery. Lowell v. Township of Watertown, 25 N. W. Rep. 517;Cuthbert v. City of Appleton, 24 Wis. 383;Kelly v. Railroad Co., 28 Minn. 98, 9 N. W. Rep. 588. A large number of instructions were given to the jury by the court upon its own motion. They were preparedwith considerable care, and doubtless cover substantially every phase of the case. Plaintiff in error requested the court to give the following instruction: “(1) While the plaintiff had a right to presume that the defendant's sidewalks were in good repair, and was only bound to exercise ordinary care, yet, if the jury found from the evidence that the plaintiff was appraised, and...