Weigel v. City of Hastings

• Decision Date: 29 April 1890
• Citation: 29 Neb. 379,45 N.W. 694
• Parties: WEIGEL v. CITY OF HASTINGS.
• Court: Nebraska Supreme Court

29 Neb. 379

45 N.W. 694

WEIGEL

v.CITY OF HASTINGS.

Supreme Court of Nebraska.

April 29, 1890.

Syllabus by the Court.

The title of the act of 1883, (as amended by act 1885,) “to provide for the organization, government, and powers of cities of the second class, having more than five thousand inhabitants,” is not broad enough to include a provision exempting the city from liability for injuries to persons or property arising from the neglect of a street railway company to keep the street on which it is building its line in a reasonably safe condition.

Error to district court, Adams county; GASLIN, Judge.

Capps, McCreary & Stevens, for plaintiff in error.

C. J. Dilworth, for defendant in error.

MAXWELL, J.

This action was brought by the plaintiff against the defendant to recover damages for personal injuries sustained by her in consequence of the buggy in which she was riding being overturned in a street of that city, caused by obstructions in such street. On the trial of the cause the jury returned a verdict for the defendant; and, a motion for a new trial being overruled, judgment was entered on the verdict. The plaintiff alleges in her petition “that on the 24th day of June, 1887, and for a long time prior thereto, with full knowledge of all the facts, said defendant corporation negligently permitted dangerous and unguarded excavations to be made and remain, and timbers to be strewn, upon the streets of said city, within the corporate limits thereof, upon St. Joseph avenue and Second street, at or near the junction thereof, into which excavation, and upon said timbers, without any fault or negligence upon her part, the wheels of the buggy in which plaintiff was riding, as she had a lawful right to do, upon said streets, fell, causing her to be violently thrown therefrom into said dangerous and unguarded excavations, and upon said timbers, thereby dislocating one wrist, breaking one arm, breaking one toe, inflicting a serious contusion on her head, wrenching and straining her back, and otherwise bruising and injuring said plaintiff in her body and mind, to her damage in the sum of $2,500; that, by reason and in consequence of the said fall and injuries aforesaid, plaintiff was compelled to procure, and did procure, medical and surgical attendance, and in caring and nursing for said injuries, for which she was compelled to pay out, and for said services, the sum of $175.00.” There are other allegations, to which it is unnecessary to refer. The defendant, in its answer, alleges “that the only excavations existing, and the only timbers strewn, within the corporate limits of said defendant city, upon said St. Joseph avenue and Second street, at or near the junction thereof, on the 24th day of June, 1887, as alleged in said petition, were timbers strewn and excavations made by the Hastings Improvement Company, a street railway company then and heretofore existing under the laws of the state of Nebraska, and theretofore granted a franchise for constructing and operating a system of street railways in said defendant city, and on said 24th day of June, 1887, and heretofore, the owner of a street railway then in process of construction, under and by virtue of its franchise as aforesaid, on St. Joseph avenue and Second street, and at and near the junction thereof, in said defendant city; and the excavations so made, and timbers strewn, as herein before. set forth, were upon that portion of said avenue and said street where said company had located its track, and were upon that portion of said streets which said company was and is required by the law to keep in repair, and safe in all respects for the use of the traveling public.” It also pleads want of notice, and alleges, in substance, that the accident was caused by the fault of the plaintiff, etc. There is a reply, to which it is unnecessary to refer. On the trial of the cause, the court gave the following instruction. “Subdivision 58, § 52, p. 218, Comp. St. Neb. 1887, passed and took effect March 30, 1887, reads as follows: ‘The tracks of all railway companies, when located upon the streets or avenues of the city, shall be kept in repair, and safe in all respects for the use of the traveling public; and such companies shall be liable for all damages resulting by reason or neglect to keep such tracks in repair, or for obstructing the streets or avenues of such city. For injuries to persons or property arising wholly from the failure of such company to keep their tracks in proper repair and free from obstructions, such companies shall be liable, and the city shall be exempt from liability.’ Under this provision of the statute, if you find the...