The Village of Ponca v. Crawford
| Decision Date | 06 January 1886 |
| Citation | 26 N.W. 365,18 Neb. 551 |
| Parties | THE VILLAGE OF PONCA, PLAINTIFF IN ERROR, v. JAMES CRAWFORD, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court of Dixon county. Tried below before CRAWFORD, J.
REVERSED AND REMANDED.
Gantt & Norris, for plaintiff in error.
L. S Fawcett and Barnes Bros., for defendant in error.
This action was instituted in the district court by defendant in error to recover damages alleged to have been sustained by reason of personal injuries suffered in the corporate limits of defendant, by falling from the end of a sidewalk onto a "saw-bench" and other obstructions which had been left lying at the end of the sidewalk. The sidewalk was laid along the east side of Union street from Third street south along the west side of a building to its south-west corner where it terminated at a height of about three feet above the ground, and without any steps or other convenient way of getting onto or off the sidewalk. The night of the accident was a dark one. Defendant in error, being a stranger in the village, and desirous of passing south on Union street, took the sidewalk referred to, following it to the end, where he discovered the termination of the walk by the dark appearance in front of him, but supposing it had been provided with steps or other convenient method of descent, placed one foot on the end of the sidewalk and reached down with the other, "feeling" for the step. He lost his balance and fell, receiving the injury complained of. The trial resulted in a verdict in favor of defendant in error for $ 1,100.00, upon which judgment was rendered. Plaintiff in error brings the case to this court, and seeks a review. The questions presented for discussion will be noticed in the order in which they occur in the brief of plaintiff in error.
The first proposition to which our attention is called is, that the district court erred in overruling a motion for an order on defendant in error requiring him to make his petition more definite and certain. We are unable to find any record of a ruling upon this motion, and as an answer to the petition was subsequently filed, we must presume the motion was waived.
On the trial one W. H. Clark was a witness for the purpose of proving certain steps taken by the citizens of plaintiff in error preliminary to its organization as a village, that question having been put in issue by the answer. This witness testified that in the year 1876 he was one of the members of the board of county commissioners of Dixon county. He was then asked whether or not there was ever presented to the board of commissioners of which he was a member a paper purporting to be a petition asking for the incorporation of the village of Ponca. This question was objected to by plaintiff in error as being incompetent, irrelevant, and immaterial, and not the best evidence, the petition itself being the best evidence. The objection was overruled, and the ruling of the court is now assigned for error. Leaving out of consideration the fact that the petition was shown by the next witness to be lost, we cannot see that the court erred in overruling this objection. The question put to the witness did not seek to prove the contents of the paper referred to, but the fact that what purported to be such a paper had existed and was presented to the commissioners. We do not understand that the rule prohibiting oral proof of the contents of a paper also prohibits proof of the existence of such a document.
The county clerk was called as a witness, and after the necessary preliminary proof the county commissioners' record for July 5, 1876, was offered in evidence, to which objection was made as incompetent, irrelevant, and immaterial. This objection was overruled, and the ruling is complained of. This record was clearly competent, relevant, and material. Had the objection been urged that the proper foundation had not been laid by the introduction of the petition, or proof of its loss, a different question would have been presented, and the witness could have been interrogated, if necessary, as he was a moment afterward, as to the loss of the petition. The record showed by its recitals that a petition was filed, and while we do not decide that any further proof was necessary, yet, if such were the case, the want was supplied by proof of the loss of the petition. Objection was also made to the introduction of two patent deeds from the United States to the trustees of Ponca, under the act of congress of March 3, 1855, commonly known as the "Town Site Act," by which the land upon which the village is situated was deeded to the corporate authorities of defendant. These patents were introduced for the purpose of proving the incorporation in fact of defendant. Whether they were competent for that purpose is not a controlling question in this case, for the reason that their introduction could work no possible prejudice to plaintiff in error, since it was shown by defendant's own records that the trustees appointed by the county commissioners on the 5th day of July, 1875, duly qualified and entered upon the discharge of their duties on that day, and that the corporate powers of defendant had been maintained and exercised ever since. While it was material and necessary to show the incorporation of defendant, yet the legality of each step taken in such organization and incorporation, which had been in actual existence for years before the accident, was not a material nor necessary inquiry. Back v. Carpenter, 29 Kan. 349. In this connection it is insisted that the court erred in overruling the motion of plaintiff in error to strike out all of the testimony of the witness then upon the stand that did not tend to prove the corporate capacity of plaintiff in error, the court having sustained an objection to further testimony as to the condition of the sidewalk, upon the ground that the incorporation had not been proved. But as the incorporation was subsequently proven, the error, if one, was without prejudice, and could not affect the rights of plaintiff in error. At most it could only reach to the order of the introduction of proof, as it could not be claimed the testimony would have been improper had it been introduced after proof of the user of the corporate franchise by plaintiff in error. The order of the introduction...
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