56 Neb. 761 | Neb. | 1898
This action was by Catherine O’Brien against the city of Lincoln to recover for personal injuries by her sustained by reason of a defective sidewalk. She had a verdict and judgment, which the city seeks to avoid. The record distinctly presents two, and only two, questions: First, is a city of the class to which Lincoln belongs liable in any event to one who suffers an injury from a defect in the sidewalk? Secondly, was the notice served upon the city before bringing suit sufficient in its description of the place where the injury occurred?
The general duty of municipal corporations to maintain their streets, including the sidewalk space, in a reasonably safe condition for public travel, and their consequent liability for a negligent failure to perform that duty has been often asserted. Among the more recent cases declaring the rule are: City of Lincoln v. Smith, 28
“Sec. 34. The mayor and council shall have the care, supervision and control of all public highways, bridges, streets, alleys, public squares and commons within the city, and shall cause the same to be kept open and in repair and free from nuisances.”
“Sec. 31. The street commissioner * * * shall, subject to the orders of the mayor, have general charge, direction and control of all work in the streets, sidewalks, * * * except matters in charge of the civil engineer,” etc.
Sec. 67, subdiv. 6. “The council shall have power to set aside a space designated as the sidewalk space, on each side of all streets and avenues, for sidewalks and the planting of trees and grass, and may require and regulate the planting and protecting of trees and grass, and the construction of sidewalks in such space. Such space shall extend from lot line to curb. Whenever any street or avenue shall have been brought to the established grade or permanently improved, the council shall require the owners of the real estate adjacent thereto, to bring the sidewalk space along or in front of such real estate to the established grade, and to lay a sidewalk
It is upon the language of the last sentence of the last section quoted that the defendant bases its argument, asserting that the duty cast upon the city is purely governmental, to enforce the primary duty of the owner or occupant of abutting real estate, and that consequently no liability rests upon it for a failure to discharge that duty. Without entering upon a detailed analysis of the several provisions we deem it sufficient to say that after a careful examination we are agreed that the purpose of the last provision of subdivision 6 was not to relieve the city from the duty, and consequent responsibility, which would clearly follow, under the uniform decisions of this court, from the sections quoted in the absence of the last provision. Whether the object was to assure a liability over from the owner or occupant to the city, or whether it was to add a liability on the part of the owner or occupant to the person injured, in addition to that attaching to the municipality, is a question not involved in this case. Certainly the object was one or the other, or both. There is no hint of an intention to relieve the city from a liability clearly implied from the preceding provisions. These cast upon the city the duty of maintaining the streets and sidewalks, create an officer to superintend the performance of that
The other question presented is by no means free «from doubt, but we think that too must be resolved in favor of the plaintiff. Section 36 of the act already cited provides: “To maintain an action against said city for any unliquidated claim it shall be necessary that the party file in the office of the city clerk, within three months from the time such right of action accrued, a statement giving full name and the time, place, nature, circumstance, and cause of the injury or damage complained of.” It has been held that this is a reasonable exercise of legislative power, and that a compliance with the requirement must be alleged and proved in order to a recovery. (City of Lincoln v. Grant, 38 Neb. 369; City of Lincoln v. Finkle, 41 Neb. 575.) This requires that the place of the injury be stated. In the notice served by plaintiff she states: “That on or about the 6th day of October, 1894, this affiant was passing on and over the sidewalk on the north side of Q between Eighteenth and Twentieth streets, in said city, in the evening of said day, and stepped into a hole in said sidewalk, which was in a bad state of repair.” It is to be inferred that it was the sidewalk and not the hole which plaintiff intended to say was in a bad state of repair,—a fact which, it will be seen, is of some importance. It is asserted that this statement is entirely insufficient, in that it designates
In Fopper v. Town of Wheatland, 18 N. W. Rep. [Wis.] 514, in that part of the notice fixing the place a considerable extent of road was described, but in describing the accident circumstances wrere stated which showed that it must have occurred at a particular spot along the course indicated, and this was held enough.
In Owen v. City of Fort Dodge, 67 N. W. Rep. [Ia.] 281, the notice was somewhat ambiguous, but showed that the accident was about the intersection of two streets. It also showed that it occurred on a plank crossing. The evidence on the trial showing that there was only one plank crossing at the intersection named, the notice was held good, although the corner may have been improperly described.
In Laird v. Town of Otsego, 62 N. W. Rep. [Wis.] 1042, the description was uncertain in itself, naming an indefinite portion of a highway; but it afterwards described the obstruction causing the injury, and it was held that as this obstruction was conspicuous its description made the notice good.
In Lyman v. Hampshire, 138 Mass. 74, the notice placed the accident on a bridge of considerable length, but said that it was caused by stepping in a hole in the flooring caused by a short plank. There were three such holes, but the notice was held good because it did not appear that more than one was large enough to permit such an accident.
In Brown v. Towm of Southbury, 53 Conn. 212, the notice described “a defective sluice across a highway” between certain houses. There were three sluices across the highway in the space described, but only one was defective. This was held sufficient.
In Lowe v. Clinton, 133 Mass. 526, the place was fixed between two houses which were fifty rods apart and there were intervening houses/ but there was also described as the cause of injury a stump projecting four inches above the sidewalk. There was only one such stump, and therefore it was held that the notice was sufficient.
In Cross v. City of Elmira, 86 Hun [N. Y.] 467, the notice said that plaintiff was walking on the plank sidewalk on the north side of East Washington avenue, between Oak and Pratt streets. The distance named was 368 feet and there was plank sidewalk containing other holes than that causing the injury for a distance of 150 feet. This was held sufficient.
In McCabe v. City of Cambridge, 134 Mass. 484, the place on the street was not very definitely given, but the obstruction was described, and this was held enough, the court saying that the city certainly would not insist that there were several such defects in the neighborhood.
The cases cited illustrate the principles already stated, and also serve to show with what liberality the courts have construed this somewhat harsh statute. An application of the rules induced from the cases certainly helps .out this notice. The evidence showed that plaintiff was injured at a spot on the sidewalk within the space named by the notice and between Eighteenth and Nineteenth streets; that this was in front of the one vacant lot in that block, and in front of that lot there was a plank sidewalk, the planks laid lengthwise and containing several large holes. It is true that it appears that the plaintiff knew the exact location and might have described it better in her notice. On the other hand, it is inferable from the evidence that the ruinous sidewalk was peculiar to that part of the street in front of this one lot. There is no proof that there were any holes elsewhere along the two blocks described, and we cannot presume that
Affirmed.