18 Neb. 114 | Neb. | 1885
The original action was instituted by defendant in error against plaintiff in error for the purpose of recovering damages alleged to have been sustained by him by reason of a defect in one of the public streets in the city of Lincoln. The allegation of the petition is, and the proof shows, that on the evening of the 11th day of November, 1882, while defendant in error was riding along the street, his horse stepped into a mud hole or wagon rut and fell, throwing defendant in error upon the ground and breaking his leg.
The first proposition contended for by plaintiff in error is, that the testimony “ establishes, beyond any controversy, the existence of such facts as render defendant in error guilty of contributory negligence, as a matter of law, and therefore the trial court' erred in submitting the case to the jury.”
To this we are unable to agree. It appears that a week or ten days before the accident defendant in error saw the defect in the street, but there is no proof of his having seen it afterwards. It was his custom to ride from his home, east of the city, to his place of business, using for that purpose a horse, or colt, three years old the spring before.
“ In no class of cases can this practical experience be more-wisely applied than in that we are considering.
“We find accordingly, although not uniform or harmonious, that the authorities justify us in holding in the case before us that, although the facts are undisputed, it is for the jury and not for the judge to determine whether the proper care was given, or whether they established negligence.”
Plaintiff in error requested the court to instruct the jury as follows:
4. “ The plaintiff was bound to • exercise ordinary care for his personal safety while passing along the streets of the defendant, and if the jury believe from the evidence that plaintiff's slight negligence, if any, contributed' directly to the alleged injury, then you will find for the defendant.” This instruction was given as prayed.
It then requested the court to give the following instruction :
7. “ If the jury believe from the evidence that there was a slight want of ordinary care on the part of the plaintiff, which slight want of ordinary care contributed to the injuries complained of, the plaintiff can not recover unless the jury further find the negligence on the part of the defendant was so gross as to justify the jury in finding that the alleged injury was caused by the willful and malicious act of the defendant or its agents or servants.” The court refused to give this instruction, and this refusal is assigned as error.
Without stopping to inquire as to whether or not these instructions were applicable to the case, we will be content with a comparison of the two.
If there is any appreciable difference between “slight negligence,” as used in the first of the above instructions, and a “slight want of ordinary care,” as used in the ■second, we are wholly unable to see that'difference, and will assume that they mean substantially the same thing. The first instruction informs the jury that if the slight negligence of defendant in error contributed directly to the injury they should find for the plaintiff in error. This virtually excluded all consideration of the negligence of plaintiff in error, whether slight or gross The proposition
Plaintiff requested the trial court to give the following instruction to the jury:
“The jury is instructed that a city is not liable to respond in damages because of every depression or inequality in the surface of its streets even though injury result therefrom. It is only liable when it fails to keep its streets in a reasonably safe condition for public travel, and it is not necessary that it should keep the entire width of its streets in good condition for travel, unless the public convenience and travel demands it; and if you find from the evidence that a sufficient width of the street, at the point of the alleged injury, was in a reasonably safe condition for public travel, and that the plaintiff could have passed over and along the same'without injury by the exercise of ordinary care and prudence, then you will find for the defendant.”
The court refused to give this instruction and the refusal as assigned as error. Before examining this instruction it may be observed that instructions one and ten, which were asked for by plaintiff in error and given, to some degree cover the same ground as the instruction above quoted. They are as follows:
*119 1. “ The jury is instructed that the defendant city is not an insurer against accidents upon its streets, nor is it liable for every defect therein, though it might cause the injury sued for. And if you find from the evidence that the street at the place of the alleged injury was in a reasonably safe condition for travel in the ordinary modes, then you will find for the defendant.”-
10. “ The jury are instructed that defendant city is only' required to exercise ordinary care and prudence in keeping its streets in repair, and unless you find from the evidence that the defendant failed 'to exercise ordinary care and prudence in the repair of its streets, at the place of the alleged injury, then you will find for the defendant.”
By a comparison of the foregoing instructions it will be seen that the instruction refused was substantially given by numbers one and ten, except that part which would exonnerate plaintiff in error from keeping the entire width of its streets in good condition for travel, unless the public convenience and travel demanded it. This branch of the instruction refused was not applicable to the case and was therefore properly refused. It is quite probable that a city is not required to keep the entire width of its streets in good condition under some circumstances, while under others it would be necessary, and that, too, without regard to whether the public convenience and travel demanded it or not. If part of the space included in a street, owing to the conformation of the surface, could not be made suitable and safe for travel and no effort thereto was made, then it might be allowed so to remain, perhaps, without the city incurring any liability; or, if in the case at bar it had been shown that the city had not undertaken to improve the whole street, or that the street at the point of the accident had been at an unfrequented part of the city, in that event it would have presented a question to submit to the jury as affecting the primary liability of the city, or of the care or negligence of the parties. But as the record and testi
Other instructions were requested by plaintiff in error, and refused, and of which refusal complaint is now made, but upon examination of the record we find they were all substantially given by being embodied in other instructions and it would subserve no good purpose to quote them here.
It is also insisted that the court should have instructed the jury that it was incumbent on defendant in error to show that no negligence of his contributed to the injury, and that upon him rested the burden of proof as to the absence of such contributory negligence; but as the question was fully presented to the jury by repeated instructions that he could not recover if his own negligence contributed in any way to the injury we will notice it no further. It is sufficient to say that, under the instructions given, thé jury must have found that defendant in error was guilty of no negligence whatever. The judgment cannot therefor* be reversed, and is affirmed.
Judgment affirmed.