Seyfer v. Otoe Cnty.

Citation66 Neb. 566,92 N.W. 756
PartiesSEYFER v. OTOE COUNTY.
Decision Date03 December 1902
CourtSupreme Court of Nebraska

66 Neb. 566
92 N.W. 756

SEYFER
v.
OTOE COUNTY.

Supreme Court of Nebraska.

Dec. 3, 1902.



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 evidence, unless such verdict is clearly wrong.

2. In constructing and maintaining a bridge for public use, a municipality is not limited in its duty by the ordinary business use of the structure, but is required to provide for what

[92 N.W. 757]

may be fairly anticipated for the proper accommodation of the public at large in the various occupations which, from time to time, may be pursued in the locality where it is situated.

3. In an action against a county by the administrator of the estate of a deceased person to recover damages alleged to have been caused by the breaking down of a bridge while the deceased was attempting to cross it with a steam traction engine and separator, it is for the jury to determine whether or not the bridge was properly constructed and maintained, and whether the use which the deceased was making of it was unusual and extraordinary, and such as the county was not bound to anticipate.

4. Ordinarily it is error for the court to instruct the jury that a circumstance, or a group of circumstances, as to which there has been evidence on the trial, amounts to negligence per se; but where such fact or group of facts, if established, amount in law to negligence, the court, having left the question as to the existence of such facts to the jury, may state their legal effect.

5. The declaration of a deceased person, made to a third party, as to his knowledge of the condition of a bridge, which gave way while he was attempting to cross it, and caused his death, before the accident occurred, may be properly received in evidence as tending to establish contributory negligence.


Commissioners' opinion. Department No. 2. Error to district court, Otoe county; Jessen, Judge.

Action by Henry Seyfer against the county of Otoe. Judgment for plaintiff, and defendant brings error. Affirmed.

John C. Watson, John V. Morgan, and Robert Ryan, for plaintiff in error.

W. W. Wilson and D. T. Hayden, for defendant in error.


BARNES, C.

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 16 or 18 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 was 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...

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