88 Neb. 519 | Neb. | 1911
A judgment was recovered against the city of Omaha for damages caused by falling through an opening in the
It appears from the evidence, a large part of which is contained in the stipulation of facts, that 25 or 30 years ago one Peter Goos erected a hotel building on the lots in question, and excavated an opening called an “area” along the side of said building 25 or 30 feet in length and several feet in width under the sidewalk. Afterwards he mortgaged the building to this defendant to secure an indebtedness, and the defendant foreclosed the mortgage, and upon the foreclosure sale purchased the property, and so became the owner thereof. The defendant thereupon leased the property from time to time for hotel purposes, and it was being so occupied by the tenant of this defendant at the time the accident occurred, which was the- occasion of the damages recovered in the judgment against the city.' It does not appear from the evidence when nor by whom the opening in the walk over the area was made, and the city authorities had not notified the defendant to repair the defect in these openings before the accident occurred.
1. It is first insisted by the defendant that the owner of the property is not liable for defects in the sidewalk adjoining the property without having first been notified by the city of such defects and given opportunity to repair ,the same. The statute in force at the time of the accident provided that “in case the owner or owners of any such lot, lots or lands abutting on such street or portion thereof, shall fail to construct or repair such sidewalks in the manner and within the time as directed and required by the council in each case after having received due notice to do so, they shall be liable for all damages or injuries occasioned by reason of the defective or danger
2. It appears from the evidence, as before stated, that this area under the sidewalk was constructed with the hotel building, but there is no evidence in the record as to the purpose of the openings in the covering of this area. The defect in these openings was the cause of the accident, and it is contended that, they being in the sidewalk adjoining the hotel building, the defendant would not be liable for neglect to repair the same unless notified by the city and required to so repair them. In this connection the defendant insists that it had no notice or knowledge of the defect in these openings, and is therefore not liable for such damages. There is no evidence in the record that there was any application to the city authorities for permission to construct this area, or that any such permission was given, and it is argued that there cannot therefore be implied any agreement or obligation on the part of the owner of the property to maintain the area and its covering in a proper and a safe condition. We cannot, however, presume that the defendant or its grantor constructed this area without the knowledge and at least implied consent of the city authorities. It must therefore be presumed that the city authorities consented to the construction of this area, and that consent was upon the implied condition that the owner of the property would maintain it in a proper and safe condition. This area was also of such a character and of such dimensions that the defendant must be held to have known of
The case of City of Lincoln v. First Nat. Bank, 67 Neb. 401, is like this in some of its facts. The bank had bought the property at sheriff’s sale on foreclosure of a mortgage which it held thereon. There was an excavation under the walk adjoining the building upon the property, and there were coal holes through the covering of the excavation. Through some defects in the covering of these coal holes, a woman fell through one of them and was injured and recovered a judgment against the city. The city sued the bank to recover the amount of the judgment and costs. The difference between the two cases, consists in the fol-. lowing facts: In the Lincoln case, the sheriff’s deed upon the foreclosure was dated 32 days and recorded 20 days before the accident. The bank had not taken possession of the property, nor assumed to exercise any control over it, and, in fact, was not aware of the excavation under the walk, nor of the coal holes through the covering of the excavation. In the opinion the case of Irvine v. Wood, 51 N. Y. 224, is cited, and it is said that it is there “held to devolve iipon both landlord and tenants to see that an excavation under the street was made safe for passers.” It was also said in the opinion: “The numerous decisions as to the respective liabilities of lessor and lessee in such cases show that the owner’s liability, where it exists, is not as owner, but as creator or continuer of a nuisance.” In the case at bar, the defendant had owned, occupied and leased the premises for several years before the accident occurred. The area, which was constructed for a ten-pin alley, constituted a large room under the sidewalk. It is impossible to believe that the defendant did not know of its existence. In fact, it was’ of such a nature that the law
It is, however, contended that there are no facts alleged in the petition showing any contract, express or implied, between the defendant, or its grantor, and the city. The petition is largely drawn upon the incorrect theory that the defendant would be liable for defects in an ordinary sidewalk adjoining his premises, without notice from the city, and without a demand by the city that such defects be repaired. The petition, however, also alleges that the defendant “caused and permitted a public nuisance on said walk as follows, to wit: That on the south side of said Jackson street, and adjoining said property herein described, there was on the 6th day of January, 1903, a slag-stone sidewalk, running from Fourteenth street to Fifteenth street, along the north front of said Thurston hotel; * * * that in said slag-stone sidewalk there had been ever since the construction of said hotel building several holes through the sidewalk; * * * that said opening in said sidewalk was a coal hole which opened into an excavation some eight or ten feet in depth under said sidewalk, which excavation was constructed at the time of the construction of said building in 1888, and was for the benefit and use and accommodation of said building and the owners and occupants thereof; that underneath said sidewalk the ground was entirely removed to the extent of eight or ten feet in depth, and the space underneath said sidewalk constituted a room or areaway
The trial court made a general finding in favor of the city and against the defendant. It must be presumed that the court found that, in maintaining this area as the de
Affirmed.