63 Neb. 333 | Neb. | 1901
This action was brought by this plaintiff as administratrix of the estate of Albert D. Bowman, deceased, in the district court for Douglas county, to recover damages from the city of Omaha on account of the death of the said Albert D. Bowman by drowning in a pond of water in said city. This is the third time this case has been before this court. When the case was first here {City of Omaha v. Bowman, 52 Nebr., 293), the judgment was reversed because the instruction of the trial court “assumed that evidence of such overflow of lots by the massing thereon by a city of the water of a running stream as would entitle the lot owners to damages would be proper proof in support of a claim for compensation for personal injury to one who had no interest in the lot itself.” Under the pleadings and evidence, as the case then stood, it appeared that the pond in which the child was drowned was on -private property Avithin the limits of the city, but it did not appear that this pond was on, or in dangerous proximity to, a public highway, street or alley; and it was held that in such case the city did not owe any duty to the general public (aside from that of a sanitary character) other than such as devolves on private owners of property similarly situated, even though the city may have created the pond of which the plaintiff complained. After the case had been remanded to the district court, the plaintiff filed an amended petition in which she alleged :“That the city was negligent in allowing the water to accumulate, and be and remain by the side of Davenport street, near Twenty-Eighth street, within the limits of the city, * * * and upon lots 3, 4 and 5, block 3, Drake’s addition to the city of Omaha, all fronting upon said Davenport street; * * * that there Avas at said time no fence around said lots, and no visible boundary line between them and said Davenport street * * * said water being, at the time of said death, over public property of the city, to wit, over a part of the property set apart by said city for sidewalk purposes, and said
1. It is insisted that the evidence does not support the allegations brought into the petition by the amendments referred to. But in this we can not agree with the learned counsel for the city. Tbere is very little substantial
2. It is contended by counsel for the city, in an able argument and an exhaustive review of the authorities, that the holding in this case when it was the second time before this court (Bowman v. City of Omaha, 59 Nebr., 84), as well as the rule announced in City of Omaha v. Richards, 49 Nebr., 244, is unsound; and counsel urges that we review these cases and the authorities cited, and state “the law applicable to actions of this nature.” But this we can not do in this case. The law of this case, upon the question discussed by the learned-counsel, has been established by the former holdings
3. The trial court, upon directing a verdict for the plaintiff, should have given no other instructions except as to the measure of damages. A statement of the allegations of the pleadings was read to the jury, and a number of instructions upon the law bearing upon defendant’s liability were given, some at the request of plaintiff and some at the request of defendant; but we do not see how the defendant was prejudiced thereby, since the jury was told to find a
4. It is complained that the verdict of the jury is excessive. This court in a similar case refused to reverse a judgment for $2,850 as excessive. We think that what was there said is applicable to the case. City of Omaha v. Richards, 49 Nebr., 244.
It is therefore recommended that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.