Seyfer v. County of Otoe
| Decision Date | 03 December 1902 |
| Docket Number | 12,318 |
| Parties | HENRY SEYFER, ADMINISTRATOR, v. COUNTY OF OTOE |
| Court | Nebraska Supreme Court |
ERROR from the district court for Otoe county. Action in the nature of case, under Lord Campbell's act, against a county for not properly constructing, repairing and maintaining a bridge. Tried below before JESSEN, J. Verdict and judgment for defendant. Plaintiff brings error. Affirmed.
AFFIRMED.
John C Watson and John V. Morgan (Robert Ryan, of counsel), for plaintiff in error.
W. W Wilson, County Attorney, and D. T. Hayden, contra.
BARNES C. OLDHAM and POUND, CC., concur.
On the 6th day of October, 1899, John E. Neu, now deceased, was moving a steam engine and threshing machine over a public road of Otoe county. A separator was attached to the traction engine by what is known as a "sawed-off tongue," about six or seven feet long. Upon the engine was the deceased, and another party, who assisted him in running it, and a third man was upon the separator. The whole outfit was moved by this traction engine. On the said road or highway, was a bridge sixteen or eighteen feet in length, spanning a ravine or dry run. Neu attempted to cross this bridge with the outfit above described. A portion of the bridge gave way and Neu was precipitated to the bottom of the ravine, and received injuries from which he died in a few days thereafter. The bridge broke down as the front wheels of the separator were coming onto it, and just before the engine passed off from it. The plaintiff herein was appointed administrator of Neu's estate, and brought a suit against the county for damages, alleging that the bridge, by the wrongful act, neglect and fault of the county, became and was weak, insufficient and out of repair, and dangerous for the public to cross and travel upon; that said bridge gave way and broke down by reason of the wrongful act of the county to properly construct, maintain and repair the same. The defendant answered, in substance, that the bridge was in good repair, and had always been safe for ordinary loads, for such loads as were intended to pass upon it, and for the purposes for which it was intended to be used; that the deceased was careless, negligent and reckless in propelling his engine and separator upon the bridge, and by so doing he placed upon said bridge an unusually heavy load, and that he thereby carelessly and negligently contributed to his own injury; that he was careless and negligent and contributed to his own injury in attempting to cross said bridge without first detaching the separator that was attached to said engine, and that said deceased went onto said bridge with said engine and separator without using the necessary precaution, and through the want of care and precaution caused said bridge to be broken down, thereby carelessly and negligently contributing to his own injury. The reply was a general denial. Upon these issues the cause was tried to a jury and a verdict rendered for the defendant. Plaintiff thereupon prosecuted error to this court.
1. Plaintiff contends that the verdict is not sustained by the evidence, and is contrary to law. It appears from the bill of exceptions that the bridge in question was constructed less than five years before the accident occurred. The manner of its construction was detailed, and the person who built it gave evidence as to the material used therein. It appears from his evidence that it was sixteen or eighteen feet in length, and was composed of nine white oak stringers, upon which the floor was laid. Eight of these stringers were 2x12 white oak plank; and the other one, being the middle stringer, was 3x12, and of the same material. The planking or floor of the bridge, was also composed of oak, and was held in place by pine binders at the ends, which was the only pine used in its construction. The stringers rested upon timbers supported by red cedar and white oak piles. It thus appears that the bridge was properly constructed out of good material, and there is no evidence to the contrary. There was some dispute as to the condition of the stringers at the time the accident occurred. One or two witnesses, who made a very hasty and imperfect examination of them, testified that they were brash, and seemed to break square off; that there was rotten wood on the outside of them; but no attempt was made by them to detail the amount or extent thereof. Several other witnesses testified that the stringers were in good condition, and a portion of one of them, which was broken, was brought into court and exhibited to the jury. The evidence further disclosed that the life and usefulness of such a bridge ranges from eight to twelve years. So it would seem that the bridge having been built less than five years, must have been in a fairly good state of repair; and the jury, under the evidence, were warranted in so finding. The evidence further disclosed that the bridge had been in constant use, and that farmers in that neighborhood had hauled loads over it, as one witness puts it, just as large as he could haul. Another witness testified that shortly before the accident he hauled a load consisting of fifty-five bushels of shelled corn over the bridge. It further appeared that the traction engine in question weighed 11,500 pounds without any water in its boiler or fuel in its tender; that eighty per cent. of the weight of the engine was on its back wheels; that it carried in its boiler 220 gallons of water, and had in its tank 64 gallons. The separator which was attached to it weighed 5,500 pounds. It therefore appears that the traction engine, with the two men riding thereon at the time, weighed something over 14,000 pounds; that the weight of the separator and weighing attachment was 5,500 pounds; making the total weight of the load something over 19,000 pounds, or nearly ten tons. It is shown that the front wheels of the separator would come onto the bridge before the engine passed off from it. This would require the bridge to sustain a weight consisting of nearly five times that of an ordinary load, such as is usually hauled over country roads. It was further shown that these threshing outfits carried plank with them for the purpose of planking and thus reinforcing the strength of such bridges whenever they attempted to cross them, and that deceased had such plank on the load with him at the time he attempted to cross the bridge in question; that he ran his engine and separator onto the bridge without examining it to ascertain its condition, and without planking it, notwithstanding he had the material with him for that purpose. Two witnesses testified that the deceased had previously crossed the bridge with this threshing outfit, and that he told them that the last time he crossed it before the accident occurred he heard the stringers crack, and he was lucky to get over all right, or words to that effect; and there was evidence that some of the stringers appeared to have been previously cracked or strained. It appears from this summary statement that the verdict of the jury was sustained by the evidence, and we are unable to say that it was clearly wrong.
2. It is contended that the court erred in giving instruction No 12, which is as follows: ...
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Seyfer v. Otoe Cnty.
...66 Neb. 56692 N.W. 756SEYFERv.OTOE COUNTY.Supreme Court of Nebraska.Dec. 3, Syllabus by the Court. [92 N.W. 756] 1. In a case where there is some competent evidence tending to establish every fact in issue, the verdict will not be set aside on the ground that it is not sustained by the evid......