Robinson v. City of Omaha
| Decision Date | 11 June 1909 |
| Docket Number | 15,637 |
| Citation | 121 N.W. 969,84 Neb. 642 |
| Parties | ANNA J. ROBINSON, APPELLEE, v. CITY OF OMAHA, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Affirmed.
AFFIRMED.
Harry E. Burnam, I. J. Dunn and John A. Rine, for appellant.
John T Cathers, contra.
When plaintiff was walking eastward along Davenport street between Twenty-Fifth and Twenty-Sixth streets in the city of Omaha about 10 o'clock on the night of August 15, 1903, she fell on a board sidewalk and was seriously injured. Three or four days earlier a part of the board sidewalk west of the place where the accident occurred had been replaced with a cement walk several inches lower, leaving a projection at the approach to the west end of the remaining portion of the board walk. The difference in the elevation was perhaps six or seven inches, but not greater than the height of an ordinary step in a sidewalk. When plaintiff fell, she and her sister, Mrs. McWhorter, were passing from the new cement walk to the old board walk. The cement walk was constructed by the adjacent lot owner without authority from the city. In her petition plaintiff states, in substance, that there was nothing under the west end of the board walk to support it, that it had been defective and dangerous for several years and that defendant knew of its unsafe condition long prior to the accident. Enough of the petition to show plaintiff's understanding of how she was injured is here reproduced: "August 15, 1903, at about the hour of 10 o'clock p. m. this plaintiff, while going east along said Davenport street, with a companion, between said Twenty-Fifth and Twenty-Sixth streets, and while exercising due care on her part, her companion stepped upon the north side of said wooden sidewalk, which caused the same to tip up, and this plaintiff's foot caught under said wooden sidewalk, and she was tripped and violently thrown, and in falling broke the humerus of her right arm, at or near the shoulder, and broke and tore the tendons and ligaments thereof, and she was thereby permanently injured."
The answer contained a general denial and a plea of contributory negligence on part of plaintiff. There was a verdict in her favor for $ 1,640, and from a judgment for that sum defendant appeals.
The record shows conclusively that plaintiff fell on the board sidewalk at the time and place stated, and was seriously injured. There is proof that some of the earth under the west end had been washed out, and that this condition had existed for some time. There is also testimony which shows that prior to the accident the section of the wooden sidewalk at the west end had been in a loose, rickety and rocking condition for several years. A witness who had lived in the neighborhood about five years testified: "The wooden sidewalk adjoining this permanent walk, on the east was somewhat higher than the permanent walk, and was loose; that is, it rocked when stepped on." Referring to a time before the injury, he said in answering questions which are here omitted: Referring to the west end of the board walk at the particular point where it joined that part of the old walk replaced by cement, the witness declined on cross-examination to state its condition before the change, but on redirect examination he was asked: He replied: "It was." On this subject there was considerable proof, and the testimony of plaintiff's witnesses on direct examination was somewhat weakened by cross-examination, but there was sufficient evidence to support a finding that the west end of the wooden sidewalk was defective at the place where plaintiff was injured. The defect was of such a character and had existed long enough to charge defendant with notice in time to repair it prior to August 15, 1903. City of Lincoln v. Smith, 28 Neb. 762, 45 N.W. 41.
The serious controversy between the parties however, relates to the cause of plaintiff's fall. She steadfastly adheres to the theory of her petition wherein she states: "Her companion stepped upon the north side of said wooden sidewalk, which caused the same to tip up, and this plaintiff's foot caught under said wooden sidewalk, and she was tripped and violently thrown."
On the other hand, counsel for defendant are just as confident that the proximate cause of the accident was not the defect in the wooden sidewalk, and attribute plaintiff's fall to another cause. The following excerpt from defendant's brief will make the city's contention clear: "We submit that the evidence shows that appellee's fall was caused solely by her foot going under the board sidewalk at the east end of the cement walk, and that it was by reason thereof that she tripped and fell; that, the dirt being from under the stringer on the north side, the alleged tipping of the walk on the south side had nothing to do with it; that the contention of the appellee and her sister that the walk tipped and tripped her was false."
The court instructed the jury that plaintiff was not entitled to recover if her fall was caused by her foot going under the wooden sidewalk by reason of the fact that the board walk was higher than the cement walk. The inquiry on this branch of the case was thus limited to the tipping of the walk as the cause of the injury, and defendant's principal argument is directed to the point that there was no evidence to justify the court in submitting the case to the jury on that issue, and that there is no evidence to sustain the verdict in favor of plaintiff. The determination of this question requires an examination of the testimony. The record has been considered with care, but no extended analysis of the evidence can be made without making the opinion too long. Plaintiff testified that at the time of the accident she was walking along the north side of the street with her sister on her left. In giving her testimony she referred to her sister and, among other things, said: She also said her sister stepped on the north side of the walk, made it fly up, and that it threw her. She went back to see it afterward and it was loose. She tested it, and said it was rocking, and that the earth under it was green and mouldy and looked as if it had been in that condition for some time. On cross-examination she was asked: "What is it you say that caused you to trip there, or caused you to fall?" She answered: She said further on cross-examination that the day after the accident she and her sister tested the walk by stepping on it, and that it came up a little and made a difference in the height. Referring to the tests made, she was asked by defendant on cross-examination: "Now, Mrs. Robinson, is that the only way you know that this walk flew up on that Saturday evening and you caught your foot under it?" This was answered: "I know that night when we were walking along I was holding my skirt and had my arm behind her; and she was just a trifle ahead of me, and so she must have stepped on the walk ahead of me, because she...
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