49 Neb. 244 | Neb. | 1896
This is an action by Fannie E. Richards, as administratrix of the estate of George Bertram Weston, deceased, against the city of Omaha, William J. Connell, and William E. Clark to recover damages for the death of plaintiff’s intestate. The death of Weston was caused by drowning in a pond of water in the corporate limits of said city. ’ A general demurrer to the petition was filed by the defendants Connell and Clark, which was sustained by the court and the action dismissed as to them. This judgment was affirmed at the January term, 1895. (Richards v. Connell, 45 Neb., 467.) The city filed an answer to the amended petition, to which the plaintiff replied by a general denial, and the issues tendered by the pleadings were tried to a jury, which resulted in a verdict and judgment for the plaintiff in the sum of $2,850. The city has brought the record to this court for review.
A case quite analogous in principle to the one at bar is City of Chicago v. Hesing, 83 Ill., 204. That was an action to recover damages for the death of a child about four years old. The third paragraph of the syllabus reads thus: “It is gross negligence on the part of a city to leave a ditch, filled with water, about five feet deep, in a public and frequented street bordering on a sidewalk without any guards to prevent children from falling into the same, and if a child is drowned by falling into the same the city will be liable.” The same principle was held and applied in Village of Carterville v. Cook, 129 Ill., 152; Brennan v. City of St. Louis, 92 Mo., 482; City of Indianapolis v. Emmelman, 108 Ind., 530; Nichols v. City of St. Paul, 44 Minn., 494; Hawley v. City of Atlantic, 60 N. W. Rep. [Ia.], 519; Reed v. City of Madison, 83 Wis., 171; City of Pekin v. McMahon, 39 N. E. Rep. [Ill.], 484; Gibson v. City of Huntington, 38 W. Va., 177.
As to the authorities cited by the city attorney, it is
Complaint is made in the brief of the city of the third, sixth, and seventh instructions contained in the charge of the court. Plaintiff below contends that these instructions cannot be considered, for the reason no proper exceptions were taken in the trial court. The record shows the following exception: “And now comes the said defendant, the City of Omaha, before the jury has retired to consider their verdict, and objects and excepts to the giving of instructions 3, 4, 5, 6, 7, 8, and 9 contained in the general charge of the court, and objects and excepts to the giving of' each of said instructions.” An exception to instructions en masse is insufficient unless they are all erroneous. (Redman v. Voss, 46 Neb., 512, and cases there cited.) But this case is not within the rule. The excep
The plaintiff below also contends that error cannot be predicated upon the giving of the instructions, because the assignment in the motion for a new trial relating thereto is insufficient. It is as follows: “Error of the court in giving of the instructions contained in the general charge of the court, numbers 3, 4, 5, 6, 7, 8, and 9, and of giving of each of said instructions.” This is not merely an assignment to the instructions en masse, but to each one specifically, and is therefore sufficient. (Aultman v. Martin, 49 Neb., 103.)
The third, sixth, and seventh paragraphs of the charge of the court, of which the city complains, are as follows:
“3. If you find from all the evidence in the case that the city, prior to the accident which resulted in the loss of the life of said Weston, had taken charge of and had performed work and labor upon Twenty-fifth street so as to open the same up for use and travel thereon by the public at and along where the accident occurred, then it was the duty of the city under the law to use all reasonable care and diligence in keeping and maintaining said street thereafter so as to keep said street in a safe condition for the use of the public, and any negligence on the part of said city to so keep said street in a safe condition*252 at all times thereafter for the use of the public would render the city liable if because of such failure an injury results to any one who has occasion to use said street.”
“6. You are further instructed that it is in law the duty of the city to so construct its streets as to make the same safe for the traveling public, and also that children may be upon the same with safety.
“7. If you find from all the evidence, in the case, and by a preponderance thereof, that because of the negligence of the city in not providing suitable escapes for the water ordinarily flowing down the ravine and creek, or either said water was allowed and permitted to accumulate at the point where said accident occurred, and also upon Twenty-fifth street, making said Twenty-fifth street unsafe for children to be upon said street, then the fact, if it be a fact, that said accumulation of water extended also upon property not in said street would not be material, and it would not be material whether said Weston was in fact drowned in the water in the street or on property adjacent to said street, providing the water in the street and on the adjacent property where such drowning may have occurred constituted one body of water, and provided such drowning was caused by the negligence of the city as hereinbefore explained.”
It is conceded by the city that the first two instructions quoted correctly state the law as to the duty of the municipal authorities to keep the streets in safe condition for the use of the public. The only complaint made is that they are not applicable to the facts in the case. This criticism is not merited. The negligence imputed to the city consisted in allowing this pond of water to accumulate in a public street used as a thoroughfare without providing any barriers or signals of danger, and it was entirely proper for the court to inform the jury as to the duty of the city in keeping its streets in safe condition for the use of the public. It was negligence on the part of the city to leave the pond of water unguarded, knowing that children would be attracted to such a place.
The refusal to give each of the sixteen instructions requested by the city are assigned as error. It is needless to incumber this opinion by setting out the requests to charge. We have examined all of them and find that so far as they stated correct principles of law and were applicable to the evidence, they had been covered by the instructions given. Many of the requests were incorrect, and especially is this true of the first and third. By the first the court was asked to peremptorily instruct the jury to return a verdict for the city; and by the third, that there could be no recovery if the deceased came to his death by drowning upon the private property of Mr. Connell. The error in these requests has been sufficiently
It is insisted that the court erred in permitting the plaintiff to prove notice to the city of the accident by the introduction of a paper which had appended thereto the name of the plaintiff in typewriting, and also in the admission of certain testimony of the plaintiff. The assignment in the petition is insufficient to present these matters for review, the assignment being in this language:
“28. Error of the court, during the trial, in the admission of testimony over the objections and exceptions of plaintiff in error.”
This is too general. Errors must be specially assigned in a petition in error or they will not be considered. (Smith v. Mason, 45 Neb., 610, and cases there cited.)
It is finally urged that the damages are excessive. We decline to interfere with the verdict on this ground. No precise rule for ascertaining damages in such cases can be stated. The amount of compensation must be determined from the facts and circumstances of each particular case. Under the evidence adduced, the amount awarded by the jury is not so excessive as to call for interference. Verdicts for much larger sums in actions for the death of a child have been frequently sustained by the courts. See cases cited in brief of plaintiff below. The judgment is
Affirmed.