50 Neb. 335 | Neb. | 1897
This was a suit by the defendant in error, Ann E. Nash, in the district court for Valley county, against the plaintiff in error, the city of Ord, the cause of action alleged being the negligence of the defendant city in causing and continuing a deep and dangerous excavation or trench at the intersection of two streets within said city, and within a few inches of the path or footway in common use by the public in passing along said streets. There was a trial below, resulting in a verdict and judgment in favor of the plaintiff therein, and which it is sought to reverse by means of this proceeding.
It is alleged in the petition below that the plaintiff therein, after dark, on the 7th day of November, 1890,
It is contended, first, that the trial court erred in giving instructions Nos. 2, 4, 8, and 9 on its own motion. It is not deemed necessary to set out at length the paragraphs assailed, since the particular objection now urged is that the jury were warranted in inferring therefrom that it was the duty of the city to construct and maintain a sidewalk at the place where the injury was received, and that its failure in that regard constituted actionable negligence. The instructions, it is true, state the general proposition, that a city is bound to keep its streets and sidewalks in reasonably good repair for the safe and convenient use of the traveling public, and close with the following cautionary statement: “The city of Ord is not an insurer of the condition of its streets and sidewalks; nor is every defect therein, though it may cause the injury sued for, actionable. It is sufficient' to relieve it from liability if the streets and sidewalks were in a reasonably safe condition for foot travel by night. If in this case it is shown by the evidence that at the- place where the plaintiff claims she met with her injury the street or sidewalk was in a reasonably safe condition for foot travelers, your verdict should be for the defendant.” The term “sidewalks,” although, perhaps, not the most precise or accurate which, under the circumstances of the case, might have been employed, could not, we think, have misled the jury or diverted their minds from the real issue presented by the pleadings and proofs. The alleged negligence, as we have seen, was the causing and continuing of a dangerous trench in the public street within a few inches of the path or footway in common use by the public. We are aware of no rule requiring the construction of artificial sidewalks as a condition precedent to the right of foot passengers to the safe and
An additional objection to instruction No. 4 is on account of the statement therein that a city is required to
Exception is taken to instruction No. 8 given at the request of the plaintiff below, to the effect that it is the duty of a city to keep its streets in a reasonably safe condition for travel by all persons. The particular criticism of this instruction is directed to the word “all,” which, it is contended, excludes from the jury the question of contributory negligence; but in the same sentence it is expressly stated that the plaintiff, in order to recover, must prove that the injury complained of was received without fault on her part, and in other paragraphs the law of contributory negligence is correctly stated and applied. The use of the word “all,” if erroneous, is accordingly error without prejudice.
Another assignment is the admission in evidence, over the objection of the defendant city, of the testimony of Mrs. Way given on a former trial. It appears from the admissions of counsel that there were two trials of the cause previous to that resulting in the judgment now before us for review, at each of which Mrs. Way testified in behalf of the plaintiff therein. It is also shown and not disputed, that the witness named is now a resident of the state of California and was not within the jurisdiction of the district court at the date of the third trial. From the testimony of Mr. Henderson, the stenographer who» reported the proceedings of the second trial, it appears that the notes taken by him have been destroyed and the testimony then given cannot be reproduced. Upon that showing the plaintiff was permitted to read in evidence the testimony of said witness on the first trial. It has
Finally, it is argued that the trial court erred in rejecting as evidence the result of certain experiments made a year or more subsequent to the accident. The witnesses named were, according to the offer in the record, on a cloudy night,, with the assistance of a light in an adjoining house, similarly situated to one burning at the time of the accident, able to plainly see the footpath and also the surface of the ground, for a radius of several feet from the point where the injury was received. There is, as all agree, some room for the exercise of discretion by the trial court in the receiving and rejecting of evidence of this character, and we are unable to say that there has, in this instance, been an abuse of such discretion. We must not be understood as intimating that it would have been reversible error to receive the evidence offered; but the rejecting of evidence tending to prove that the condition of the premises was, at a sub
There is no prejudicial error disclosed by the record, and the judgment is
Affirmed.