81 Neb. 352 | Neb. | 1908
Plaintiff recovered judgment in the district court for Douglas county for injuries caused - by the overthrow, during a wind-storm, of a billboard, which he claimed defendant had suffered to be placed and maintained close to, or upon, part of the sidewalk space on the north side of Farnam street, between Eighteenth and Nineteenth streets, in the city of Omaha.
Defendant, in its brief, alleges four grounds of error: That the court erred in not sustaining appellant’s challenge of the juror Liddell; that the verdict of the jury is not sustained by sufficient evidence; that no sufficient notice was given to the city as required by section 22, ch. 12a, Oomp. St. 1901; and that the court erred in admitting evidence as to the condition of the billboard at a period long prior to the accident complained of. We will consider these points in reverse order.
Courts generally agree that statutes like the foregoing should be liberally construed, and we so held in City of Lincoln v. O’Brien, 56 Neb. 761. The statute is explicit that “the time when and the place where” the accident or injury happened shall be given. Those particulars were furnished in the notice. There must also be actual notice in writing of the accident or injury complained of, with a statement of the nature and extent thereof. It will be observed that this requirement is in the disjunctive — “the accident or injury.” The accident and the injury are distinct and separate. The one precedes and is the cause of the other. The injury results from the accident. A statement of the nature and extent of the accident would not of necessity include a description of the injury. In like manner, a statement of the nature and extent of the injury might be given without reference to the accident which produced it. The court cannot increase the plaintiff’s burden by construction, and we must hold that a statement
It is evident that the construction which we have given the section of the statute above quoted cannot be considered an inspiration on our part, for the same view seems to have occurred to others as early as 1905, when the legislature was called upon to, and did, amend the section under consideration by substituting the conjunction “and” for the disjunctive “or,” and by adding other requirements which defendant is contending for here. This section now appears as 206, ch. 12®, Comp. St., and reads thus: “No city, governed by this act, 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, describing fully the accident and nature and extent of the injury complained of,‘ and describing the defects causing the injury, and stating tlie time when and with particularity the place where the accident occurred, shall be proved to have been filed with the city clerk within ten days after the occurrence of the accident or injury.” The words which we have italicized indicate very clearly that some one interested in saving the rights of metropolitan cities had discovered the weakness in the statute in force prior thereto, and secured the amendment above set out.
Counsel for defendant place great reliance upon Curry v. State, 4 Neb. 545, and other early cases in this court. We had occasion to consider those cases again at a later date, and in Basye v. State, 45 Neb. 261, cited with approval in Dinsmore v. State, 61 Neb. 418, 433, Curry v. State, supra; Miller v. State, 29 Neb. 437, and the other early cases are discussed and distinguished. In Dinsmore v. State, supra, we held: “The ruling of a trial court in deciding a challenge for cause will not be disturbed, unless an abuse of discretion is shown.” On page 433 AAre said: “The evidence as a whole shows that any impression or opinion these jurors had was wholly hypothetical, which brings the case within the principles announced in Basye v. State, 45 Neb. 261, Avhere all objections urged by defendant are discussed and resolved against him, and the earlier opinions of this court cited by defendant are discussed and distinguished.” In Goil v. State, 62 Neb. 15, we again state: “The ruling of a trial court in deciding a challenge for cause will not be disturbed unless an abuse of discretion is shoAvn.” In Keeler v. State, 73 Neb. 441, we said: “If the voir dire examination of a juror, considered as a whole, does not show incompetency, a challenge upon that ground is properly overruled, although during his examination statements be made which, if unexplained, might be ground for challenge.” The. opinion is by Sedgwick, J., and fully supports the syllabus. In Basye v. State, supra, Norval, C. J., on page 278, states the rule very clearly: “Although it is competent and proper to put to a juror questions to elicit from him whether he could lay aside any opinion formed, and decide the case upon the evidence produced on the trial, yet it is the duty and province of the court, and not of the juror, to pass upon and determine the question of capability and whether or'
Applying the law, as clearly announced by this and the other courts above cited, we hold that the trial court, in determining the fact of qualification of the juror Liddell, was not confined to his answers alone, but could consider his appearance and general demeanor while undergoing examination, and if, from his answers and a consideration of his appearance and general demeanor, the court was convinced, as it evidently was, that he was a fair and impartial juror, it was not an abuse of discretion to overrule the challenge. The answers of the juror fall far short of showing that he had any “unconditional and fixed” sympathy for Mr. Bemis, whom he did not know personally. He expressly stated that he had no prejudice, so far as either party is concerned, so that, at most, all that can be inferred from his examination is that he had a vague “hypothetical or conditional” feeling of sympathy for plaintiff, nothing more than any fair-minded citizen would have for anyone in plaintiff’s unfortunate condition. The entire examination of the juror shows him to have been a very fair and frank man, just the kind of a man who would make a good juror. His answer, “Well, if it would require a preponderance, I suppose I would have to go by the instructions of the court,” and again, “As near as I understood the instructions I would,” were sufficient, when taken together with the court’s observation of the juror while giving this testimony, to bring the question as to whether or not he should be excused within the discretion of the court. The court, after hearing all the answers and observing his demeanor, exercised its discretion in favor of his retention as a juror, and we cannot say that in so doing there was any abuse of discretion.
The case appears to have been tried with great care on the part of the court, and with signal ability on the part of counsel on both sides. No claim is made that the amount allowed by the jury is excessive, nor is the conduct of any
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.