Schmidt v. City of Fremont

• Decision Date: 16 December 1903
• Docket Number: 13,233
• Citation: 97 N.W. 830,70 Neb. 577
• Parties: WILLIAM SCHMIDT, JR., A MINOR, BY WILLIAM SCHMIDT, SR., HIS NEXT FRIEND, v. CITY OF FREMONT
• Court: Nebraska Supreme Court

97 N.W. 830

70 Neb. 577

WILLIAM SCHMIDT, JR., A MINOR, BY WILLIAM SCHMIDT, SR., HIS NEXT FRIEND, v. CITY OF FREMONT

No. 13,233

Supreme Court of Nebraska

December 16, 1903

ERROR to the district court for Dodge county: JAMES A. GRIMISON JUDGE. Affirmed.

AFFIRMED.

Frank Dolezal, for plaintiff in error.

Charles E. Abbott, contra.

AMES C. HASTINGS and OLDHAM, CC., concur.

OPINION

AMES C.

The plaintiff in error, when a boy ten years of age, fell on a sidewalk in the city of Fremont and broke his arm. This action was brought to recover damages from the city, for alleged negligence in permitting the sidewalk to be dangerously out of repair, and thereby causing the fall. After the introduction of evidence by both parties, the jury were instructed to return a verdict for the defendant, which they did; and a judgment was rendered accordingly. The statute governing the city at the time of the accident contained the following section:

"No city shall be liable for damages arising from defective streets, alleys, sidewalks, * * * within such city, unless actual notice in writing of the accident or injury complained of, with a statement of the nature and extent thereof, and of the time when and the place where the same occurred, shall be proved to have been given to the mayor or city clerk within thirty (30) days after the occurrence of such accident or injury."

No notice conformable to the statute was served upon the mayor or city clerk, or attempted so to be, until the 37th day after the accident complained of. The plaintiff contends that he is excused for failure to give such notice sooner, by reason of incapacity caused by his injury. Whether he is so or not is the only question presented for review. The plaintiff cites no authority directly in point supporting his contention, but urges that physical inability to comply with the law, without fault on his part, is, like the act of God, a sufficient excuse for noncompliance. The validity of the general rule is not doubtful, but we apprehend that it is available only as an excuse for the nonperformance of a legal duty by the party pleading it, but not to extend the time, or afford an opportunity, for the fixing of the statutory liability upon another.

This court held in Goddard v. City of Lincoln, 69 Neb. 594, 96 N.W. 273:

"The liability of a city, for injuries resulting from defective streets or sidewalks, rests exclusively upon express or...