Watters v. City of Omaha

• Decision Date: 08 June 1906
• Citation: 107 N.W. 1007,76 Neb. 855
• Parties: WATTERS v. CITY OF OMAHA.
• Court: Nebraska Supreme Court

76 Neb. 855

107 N.W. 1007

WATTERS

v.CITY OF OMAHA.

Supreme Court of Nebraska.

June 8, 1906.

Syllabus by the Court.

Where a city, in the erection of a public work, exercises reasonable care and judgment, and adopts plans approved and recommended by engineers having all the knowledge that skill and experience in such work would naturally give them, it should not be held liable in damages on account of an alleged defect in the plan, unless the construction is so manifestly dangerous that all reasonable minds must agree that it was unsafe.

Commissioners' Opinion. Department No. 2. Appeal from District Court, Douglas County; Kennedy, Judge.

Action by Flavia Watters, administratrix of Stephen W. Watters, against the city of Omaha. Judgment for plaintiff. Defendant appeals. Reversed.John P. Breen, W. H. Herdman, and A. G. Ellick, for appellant.

Weaver & Giller and John M. Macfarland, for appellee.

JACKSON, C.

The plaintiff, as administratrix of the estate of her deceased husband, recovered judgment against the defendant city because of the death of the decedent, which it is alleged occurred through the negligent acts of the defendant. The deceased was a laborer in the employ of a distilling company, and was returning to his home by way of Eleventh street. On this street is a viaduct over the Union Pacific and Burlington railroad tracks. The viaduct covers a distance of four blocks or more, and an open stairway extends from the roadway of the viaduct into one of the streets below, constructed for the convenience of foot passengers. The deceased was seen to turn into this stairway, and an instant later to fall into the street. He sustained injuries from which his death occurred within two or three hours. His only statement about the fall was that he slipped. It is charged in the petition that he slipped upon one of the steps which had become worn and slippery on account of continuous rainfall for several days previous to the accident. Negligence is attributed to the city because the railing at the stairway was not sufficiently high to prevent persons from falling over, because of a failure to cover the stairway, and because of the rise exceeding 6 inches in 12, thereby rendering the descent dangerously steep. The evidence discloses without question that the viaduct and stairway were constructed jointly by the city of Omaha and the railroad company over whose tracks it was built. Plans and specifications were submitted by contractors, and the one adopted had the approval of Andrew Rosewater, city engineer of the defendant, the chief engineer of the Burlington Railroad Company, the chairman of the board of public works of the defendant, at one time chief engineer of the Union Pacific Railway Company, and another engineer who had occupied a similar position. They were all of recognized and known ability and eminent as civil engineers. They recommended the adoption and approval of the plans by the board of public works, and acting upon their advice and recommendation the plans were adopted by that board and afterwards approved by the city council. The viaduct was constructed according to these plans and specifications. The same is true of the stairway and railing, although action was taken at a later date, but prior to the construction of the bridge. Mr. Rosewater was a witness at the trial and testified that the railings were of standard manufacture and height. There is no claim of a defective construction and the single question presented by the record is the sufficiency of the evidence to sustain the verdict of the jury and judgment of the court. The railing is two feet six inches above the outer...