Watters v. City of Omaha

• Decision Date: 08 February 1907
• Citation: 76 Neb. 855,110 N.W. 981
• Parties: WATTERS v. CITY OF OMAHA.
• Court: Nebraska Supreme Court

76 Neb. 855

110 N.W. 981

WATTERS

v.CITY OF OMAHA.

Supreme Court of Nebraska.

Feb. 8, 1907.

On rehearing. Affirmed.

For former opinion, see 107 N. W. 1007.

*981John P. Breen, W. H. Herdman, A. G. Ellick, Harry E. Burnam, and I. J. Dunn, for appellant.

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

ALBERT, C.

In this case, as in ordinary cases grounded on negligence, the acts or omissions of the defendant upon which the charge of negligence is based are to be tested by the conduct of a man of ordinary care and prudence in like circumstances. The improvement of which the stairway in question is a part is of such a character that it could be planned and constructed only by men of peculiar skill and knowledge in that line. The city authorities, therefore, were compelled to employ experts to plan and construct it. In doing so, they did precisely what a man of ordinary care and prudence would have done in like circumstances. Where, then, is the point of departure from the course of conduct such a man would have pursued? Is it in the adoption of the plan? They had employed men skilled in their profession to prepare it. Had they not a right to rely on the superior judgment and skill of such men? Would not a man of ordinary care and prudence have done so in like circumstances, unless the plan was so obviously defective that there could be no difference of opinion among reasonable men with respect to it?

On account of the engineering problems involved, there is a strong analogy between an improvement of this character and the construction of sewers, and the cases growing out of the latter, on that account, have a strong bearing on the case at bar. In the study of those cases, however, the distinction between a defect in a plan and a defect in the execution of the plan should be kept in mind. In Johnston v. District of Columbia, 118 U. S. 19, 6 Sup. Ct. 923, 30 L. Ed. 75, it was said: “The duties of the municipal authorities in adopting a general plan of drainage, and determining when and where sewers shall be built, of what size and of what level, are of a quasi judicial nature, involving the exercise of deliberate judgment and large discretion, and depending upon considerations affecting the public health and general convenience throughout an extensive territory; and the exercise of such judgment and discretion in the selection and adoption of the general plan or system of drainage is not subject to revision by a court or jury in a private action for not sufficiently draining a particular lot of land.” To the same effect are the following: Fair v. Philadelphia, 88 Pa. 309, 32 Am. Rep. 455;Mills v. Brooklyn, 32 N. Y. 489;Child v. Boston, 4 Allen, 41, 81 Am. Dec. 680;Attwood v. Bangor, 83 Me. 582, 22 Atl. 466;Wicks v. De Witt, 54 Iowa, 130, 6 N. W....