Wright v. City of Omaha

• Decision Date: 05 January 1907
• Citation: 78 Neb. 124,110 N.W. 754
• Parties: WRIGHT v. CITY OF OMAHA.
• Court: Nebraska Supreme Court

78 Neb. 124

110 N.W. 754

WRIGHT

v.CITY OF OMAHA.

Supreme Court of Nebraska.

Jan. 5, 1907.

Syllabus by the Court.

The city of Omaha, under its charter of 1903, is liable to the husband for consequential damages suffered by him in consequence of injuries to his wife caused from a defective street or sidewalk in the city.

Written notice to the city given by the wife, and conforming to the provisions of section 22, c. 12a, of the charter, which notice by its wording, or from the signature thereto, brings home to the city knowledge that the injured party is a married woman whose husband may suffer consequential damage arising from her injury, is sufficient to enable the husband to maintain the action.

Whether the husband may maintain such action without notice of any kind given to the city, not discussed or determined.

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

Action by Thomas L. Wright against the city of Omaha. Judgment for defendant, and plaintiff appeals. Reversed and remanded.Frank T. Ransom and J. F. Moriarty, for appellant.

John P. Breen, W. H. Herdman, I. J. Dunn, and H. E. Burnam, for appellee.

DUFFIE, C.

The plaintiff brought this action to recover from the city of Omaha damages alleged to have been sustained in consequence of expenses incurred by him for physician's and nurse's services in the treatment of his wife, for injuries received by her upon one of the public streets of the city of Omaha. Damages were further claimed for loss of services and the society of his wife during the illness resulting from her injuries. Facts are stated in the petition showing negligence on the part of the city in the care of the street where the injury occurred. It is further alleged that written notice of the injury and the time and place of its occurrence was served by leaving the same with the clerk and mayor of the city. A copy of the notice is in the following words: “Omaha, Neb., February 5, 1903. To the Honorable Mayor and City Council--Gentlemen: Take notice that on January 20, 1903, at about 8 o'clock p. m., while walking north on the sidewalk on Fifteenth street, about thirty feet north of Spring street, in the city of Omaha, Neb., the undersigned stepped into a graded place about 14 inches deep, slipped on the ice accumulated in said place, fell and struck the back part of her head against the wooden sidewalk. She was unconscious for two hours, has been under medical care ever since, is still unable to be out of bed, and has suffered great pains, and is still suffering great pains from said fall. The place where she fell was graded by the city in order to place there a permanent sidewalk. There was no light there to warn the public of the dangerous condition of said place, and I, therefore, hold the city responsible for the injuries sustained by the undersigned. Lizzie Wright, by T. L. Wright, her husband, 1423 Canton street.” A demurrer to this petitionwas sustained by the district court upon the ground that the plaintiff had not, in his own behalf, given, or caused to be given, notice to the city of the damages sustained by him because of the injuries to his wfe. The statute then in force relating to notices to be given the city authorities, precedent to maintaining an action for damages, is in the following words: “No city shall be liable for damages arising from defective streets, alleys, sidewalks, public parks or other public places within such city, unless actual notice in writing of the accident or injury complained of with a statement of the nature and extent thereof, and of the time when and place where the same occurred, shall be proved to have been given to the mayor or city clerk within twenty days after the occurrence of such accident or injury, and it is hereby made the duty of the city clerk to keep a record of such notice, showing time when and by whom such notice was given, and describing the defect complained of; to at once file such notice and report the same to the city council at its next meeting. Any person or persons claiming to have been injured from or by reason of the cause herein indicated shall at any time, after the giving of the notice contemplated, be subject to a personal examination by the city physician and such other physicians as the city may indicate, or by either thereof, for the purpose of determining the character and extent of the injuries complained of, and a failure or refusal to submit to such examination shall prohibit the maintaining of any action against the city or recovery of any damages therefrom.”

Is this notice sufficient under the statute to entitle the plaintiff to maintain an action for consequential...