35 Neb. 68 | Neb. | 1892
The defendant in error brought an action against the city of Omaha to recover for personal injuries caused by falling into an excavation in that city, which was negligently left without guards or other protection. The city pleads two defenses: First, that the injury was caused by the negligence of the party injured; and, second, that the sewer trench described in plaintiff’s petition was at said date being constructed under a contract made to the lowest bidder as provided and required by the charter of the city of Omaha in that regard, and under and by virtue of the terms of said contract the contractor was to erect and maintain the necessary guards, signals, and protection on and around said work, so as to prevent the danger of accidents to travelers upon the street, and that under and by virtue of the terms of said contract, the defendant, the city of Omaha, had nothing whatever to do with the maintaining of such guards, signals, and protections, and the defendant further saith that it had no knowledge, directly or otherwise, that the contractor was not maintaining the necessary and proper guards, signals, or protection, and that the defendant did not have notice that such signals, guards, or protections were not maintained by said contractor.” On the trial of the cause the jury returned a verdict in favor of Mrs. Jensen for the sum of $2,000, on which judgment was rendered.
It is contended, first, that the city was not liable, for the reason that the proof shows that it had expressly stipulated with the contractor that he should place guards around the excavation, and that it had no actual notice of his failure to supply them, and that the danger had not existed a suf
In the case last cited it is said: “ The relation between the city and Barndt was clearly that of employer and independent contractor, and the rule is generally that for injuries occurring in the progress of work carried on by parties in that relation, the contractor alone is liable. But this liability is limned to those injuries which are collateral ta the work to be performed and which arise from the negligence or wrongful act of the contractor or his agents or-servants. Where, however, the work to be performed is. necessarily dangerous, or the obligation rests upon the employer to keep the subject of the work in a safe condition the rule has no application. This distinction has been taken in this state in a number of cases: Carman v. Railroad Co., 4 O. St., 399; Tiffin v. McCormack, 34 Id., 638; Hughes v. Railway Co., 39 Id., 461; and elsewhere in McCafferty v. Railroad Co., 61 N. Y., 178; Prentiss v. Boston, 112 Mass., 43; City of Logansport v. Dick, 70 Ind., 65; Crawfordsville v. Smith, 79 Id., 308; Robbins v. Chicago, 4 Wall. [U. S.], 657.
In this case the cistern contracted for was to be built in a street, and to be eighteen feet wide and twenty feet deep. Such an excavation in a street, unless protected to guard persons and animals using the street from falling into it, was necessarily dangerous. The city was under the statutory obligation at the time of the accident to keep its streets open, in repair, and free from nuisance, and it could not
Second — It is claimed the city is not liable, because it had no notice, either actual or constructive. In a ease of this kind no notice is necessary. The city had authorized the excavation in question and it was its duty to see that the proper guards were placed around it.
Third — It is claimed that the court erred in admitting the testimony of Neis Christensen. It appears from the record that Christensen’s testimony had been taken by the court’s stenographic reporter on a former trial of this case. This testimony was objected to “for the reason that no sufficient cause has been shown for reading that testimony.” The objections were overruled and the testimony admitted. In this it is claimed there is error, and we are referred to the case of Spielman v. Flynn, 19 Neb., 342. In that case it was held that a certified copy of the stenographic reporter’s record of proceedings in the district court is admissible in all cases where the original would be. That, we think, is a correct statement of the law on that point. In the ease at bar Christensen is shown to have been absent from the state, and his testimony on a former trial, if otherwise unobjectionable, is admissible. The objection is not to'the mode of certifying the evidence. Had it been, as the stenographic reporter was present in court, no doubt he would have made the proper certificate. The objections were properly overruled. There is no error in the record and the judgment is
Affirmed.