Sheets v. City of Mccook

• Decision Date: 30 January 1914
• Docket Number: No. 17,528.,17,528.
• Citation: 95 Neb. 139,145 N.W. 252
• Parties: SHEETS v. CITY OF MCCOOK.
• Court: Nebraska Supreme Court

95 Neb. 139

145 N.W. 252

SHEETS

v.CITY OF MCCOOK.

No. 17,528.

Supreme Court of Nebraska.

Jan. 30, 1914.

Syllabus by the Court.

Neither the city nor the officers of its board of health are liable for damages sustained by reason of acts committed in the exercise of police power for the benefit of the public health and safety; but, if in the exercise of such powers such officers place a rope barrier across a public walk or street, which becomes and remains in a defective and dangerous condition, and the city either has actual notice of the defect, or it has existed for such a length of time as that notice will be presumed, the city may, if the facts in the case warrant, be held liable for its negligence in leaving the walk in an unsafe and dangerous condition.

Appeal from District Court, Red Willow County; Orr, Judge.

Action by Mattie Sheets against the City of McCook. From judgment for defendant on directed verdict, plaintiff appeals. Reversed and remanded.Chas. D. Ritchie, of McCook, for appellant.

C. E. Eldred, of McCook, for appellee.

LETTON, J.

In June and July, 1910, there was an epidemic of scarlet fever in McCook. A number of houses were quarantined, and, in order to prevent the further spread of the disease, the city authorities caused ropes to be stretched, extending from the porch of one of the quarantined houses across the sidewalk to posts or stakes driven at the edge of the curb, a distance of about 22 or 23 feet. Two ropes were placed at each side of the house; the lower being about 30 inches, and the upper about 4 feet, high. The witnesses for the city testify that the ropes were stretched tight when put up, and were afterwards tightened twice; but it is shown that the stakes or posts at the curb were not in any manner braced. On Saturday, July 18, 1910, the plaintiff, a young married woman 24 years old, then about 6 months gone in pregnancy, while walking on the sidewalk about 8 o'clock in the evening, tripped and fell over one of the ropes. She testified that it struck her about half way between the ankle and knee, and that she did not know what tripped her until after she had fallen, when she discovered the rope. She makes no mention of seeing two ropes at that point. She finished her errand, and returned to her home. Some time on Sunday or Sunday night, under peculiar circumstances, she gave premature birth to a stillborn child. In the petition she alleges that the city knowingly and negligently permitted the sidewalk at the place where she fell to remain obstructed with full knowledge of the dangerous condition, that it neglected to place a light upon the rope or any warning to passers-by, and that the sidewalk had remained in that condition for a long time. The defendant's answer is a general denial and a plea of contributory negligence. At the close of the testimony defendant moved the court for a directed verdict in its favor, which was sustained, and judgment of dismissal rendered. Plaintiff appeals.

The testimony showed that the ropes were placed across the sidewalk in the latter part of June or early in July by one of the city policemen at the direction of Dr. Hare, who was a member of the board of health and city physician.

The plaintiff's position is that the city negligently failed to perform its duty to exercise reasonable care in keeping its sidewalks free from danger, both by the act of commission in placing the rope across the walk, and by its omission to warn foot passengers either by lights, barrier, or otherwise, and by suffering the rope to sag so as to make it dangerous. The city asserts that the stretching of the ropes was performed by officers of the board of health in the exercise of the police power for the protection of public health and safety, and that it is not responsible for negligent acts on the part of the board of health or of any of its officers or employés.

The ordinances of the city provide that the mayor, the city physician, the president of the city council, and the city treasurer shall constitute the board of health. They are empowered to make all needful rules and regulations relating to matters of health and sanitation in the city, and to enforce the laws of the state and the ordinances of said city in relation to such matters. The city marshal is created the health officer, with the usual powers of such official.

The board of health of the city and its officers had the right under the health ordinance to erect barriers to prevent the approach of others than the physician within nearer than 30 feet of the house. The plaintiff, while conceding that no damages are recoverable from the city which were caused by the quarantine itself, contends that the injuries which plaintiff suffered were not caused by or derived from the quarantine, but from the neglect of the city to see that its sidewalks were kept reasonably safe. The defendant insists that the rule is broader, and that the city is not liable for any negligent acts on the part of health officers, and that their act was the cause of the injury. We have held that no damages can be recovered against a city or village arising from the placing of a quarantine, for the reason that the acts of the health officer are public and governmental, and are not corporate in character. Village of Verdon v. Bowman, 5 Neb. (Unof.) 38, 97 N. W. 229. The same principle is laid down in Murray v. City of Omaha, 66 Neb. 279, 92 N. W. 299, 103 Am. St. Rep. 702, where the facts were that certain old buildings were torn down by employés of a board of building inspection, and the city was held not liable. Perhaps as clear a statement of the principle as we have seen may be found in the case of Love v. City of Atlanta, 95 Ga. 129, 22 S. E. 29, 51 Am. St. Rep. 64. The facts were that a small negro boy driving a fractious mule was employed by the city in the removal of garbage under the direction of the board of health; that the mule ran away, collided with the plaintiff's buggy, and caused serious injuries. The court say: “In the...