66 Neb. 790 | Neb. | 1902
Lead Opinion
Vincent Wrzesinski brought this action in the district court for Douglas county against the city of South Omaha, to recover damages for a personal injury alleged to have been sustained by him while passing over what was known as the L street viaduct in said city. He alleged in his petition that on the night of the 27th of September, 1899, between the hours of 11 and 12 o’clock P. M., while he was walking over said viaduct, he stepped into a hole in the board walk thereof and his leg passed through the same; that he was thrown forward and’ sustained severe and permanent injuries, from which he suffered great pain, and which disabled him for a long time from following his usual employment; that the hole which caused his injury had remained in said walk for a long time prior to the accident, and that the city had due notice thereof; that it had been there a sufficient length of time for the city, in the exercise of ordinary care, to have ascertained its existence and to have repaired the same before the accident occurred; that as a result of the injury so sustained he had been damaged in the sum of $5,000, for which he prayed judgment. The city, by its answer, denied the facts stated in the petition, and alleged contributory negligence as a defense to plaintiff’s cause of action. Plaintiff’s reply was a denial thereof. Upon these issues the cause was tried to a jury and resulted in a verdict against the city for $1,500. A motion for a new trial was presented to the district court, was overruled, and judgment was entered for the amount of the verdict. The city thereupon prosecuted error to this court.
1. Counsel for the plaintiff in error contends, first, that the court erred in refusing to give the jury instruction No. 2 of his requests, which is as follows:
*793 “In order to charge the defendant with negligence it must appear from the evidence not only that the sidewalk was defective at the time of the alleged injury, but it must further appear that such defect was actually known to the city or some of its officers, whose duty it was to repair such defects, or report them to defendant; or that the defect had existed for such a length of time prior to the alleged injury, that the city, if exercising ordinary diligence, would or should have known of the defect. And in determining whether or not the defendant exercised reasonable diligence and care in its efforts to discover and repair defects in said sidewalk, you are to consider any tests, inspections and examinations of said sidewalk, the thoroughness, sufficiency or insufficiency of the same, with all other facts and circumstances in evidence in relation thereto.”
The first part of this instruction is a correct statement of the law. The closing portion of it, however, is erroneous. It directs attention to and emphasizes unduly a part of the evidence in the case, and for that reason it was properly refused. Rising v. Nash, 48 Nebr., 597; First Nat. Bank of Denver v. Lowrey, 36 Nebr., 290; Marion v. State,
2. It is next contended by the city that the court erred in refusing to give the jury instruction No. 4 of its requests, which is as follows:
“You are instructed that if you find that said sidewalk was defective at the point complained of, yet if you further find that said defect was a latent one, that is, a defect not apparent or suggested by appearance or which was not, or would not, become apparent by a test in the nature of the ordinary use and care of the sidewalk, then defendant would not be liable for injury resulting to plaintiff therefrom, unless it had actual knowledge of the defective condition of said sidewalk or of appearances suggestive of defective or dangerous conditions, or negligently and carelessly constructed that portion of said sidewalk, with defective and decayed material.”
A careful examination of the pleadings in this case discloses that no issue of a latent defect in the sidewalk in question was tendered or tried. The plaintiff in the court below alleged in his petition that he stepped into a hole in the sidewalk; that the hole in question had remained there so long that the city had notice of it, or by the exercise of ordinary care, would have ascertained its existence. This was denied, by the city in its answer. The plaintiff testified that while walking across the viaduct on the night in question he stepped into the hole described in his petition and fell forward upon the walk, and that his leg became wedged in the hole so tightly that he could not extract it; that he was accompanied by three persons,— Frank Alex, Henry Alex and Barbara Zerzewski. Each of these witnesses testified that they were with the plaintiff when the accident occurred. They also testified as to the existence of the hole in the sidewalk; that the plaintiff
We might remark, in passing, that it appears from the record in this case that the instructions given by the trial court on Ms own motion were full and complete. No ob
3. It is further contended by the city that the court erred in permitting the city clerk to read from the record of the proceedings of the city council the action of that body upon the claim filed in the office of the city clerk by the plaintiff in the court below. It was alleged in the petition that the plaintiff served upon the defendant and filed in the office of the city clerk, his statement, in writing, giving the time, place and circumstance of his injury and the nature of the same, as required by the charter of the city, within twenty days after his injury occurred. This allegation was denied by the answer. It was incumbent upon the plaintiff to prove that fact, and the court instructed the jury that if he had failed to establish that fact, they should find for the defendant. It appeared from the evidence that the original claim, alleged by plaintiff to have been filed in the office of the city clerk of the defendant city, was lost and could not be found. It was also further shown that at the time the claim was alleged to have been filed, no record of such claims was made by the clerk; that he simply marked them “Filed” on the back thereof and placed them in a pigeonhole or package, kept for that purpose; that at the next meeting of the board after they were filed, he would lay them before the city council for its action. Under this method of procedure, the original claim, with the filing marks upon the back thereof, would be the best evidence of the fact sought to be established. The loss of the claim having been shown, and a proper and sufficient foundation having been laid for the! introduction of secondary evidence, the court permitted the record of the action of the council upon the claim in question to be read, as follows: “Damage claim of Vincent Wrzesinski, read and referred to finance and attorney; claim for $5,000 for injuries to leg by falling through a hole in the L St. viaduct, on September 27, 1899.”
This record was under date of October 22, 1899. This was one of the steps taken by the plaintiff to prove the
A very similar question was before tbe court in Blackmore v. Boardman, 28 Mo., 420. Tbe court in that case bad under consideration the question of tbe admissibility of tbe declarations of a secretary of tbe board of directors of tbe St. Louis public schools in relation to tbe giving, of a notice required for tbe renewal of a lease. We quote from tbe body of tbe opinion as follows (p. 426) : “Tbe parties agree that tbe application for renewal was in proper form, and as tbe minutes of tbe board of directors show that the notice was before tbe board on tbe 11th of August, at tbe second meeting held after it bad been left by Kurlbaum, we think bis evidence was properly received.
4. Lastly it is contended by the city that the verdict in* this case is excessive. We can not agree with this contention. The evidence discloses that the plaintiff below stepped into a hole on the L street viaduct, at or about' 11 o’clock on the night of the 27th of September, 1899; that his leg went into the hole with such force that it became wedged and jammed therein, and that it was necessary to procure help and to use a chisel and hammer to enlarge the hole before he could be released; that the immediate effect thereof was to strip the skin and flesh from his leg on each side of it and lay bare the bone; that the wrench given to his knee was so severe that it caused a seepage of the synovial fluid from the knee-joint into the surrounding tissues, thus causing great swelling and
Upon a careful examination of the whole record, we are satisfied that this cause was fairly tried, was submitted to tbe jury under proper instructions, and that tbe verdict is fully sustained by tbe evidence, and we recommend that tbe judgment of tbe district court be affirmed.
By tbe Court: For tbe reasons given in tbe foregoing opinion, tbe judgment of tbe district court is
AFFIRMED.
57 Am. Rep., 825.
Concurrence Opinion
concurring.
Tbe only important question in this case, is tbe admissibility of tbe letter written by the city clerk. I concur in tbe opinion that this letter was admissible, but think it important to state tbe principle on which such a holding-must proceed. Memoranda of acts, made by a person who is dead or beyond tbe jurisdiction of the court, whose duty it was, in tbe course of bis office or business, to do tbe acts