115 Neb. 711 | Neb. | 1927
This is an action to recover damages for personal injuries, alleged to have been caused in consequence of the negligence of defendant. In its answer defendant denied negligence and alleged contributory negligence on the part of plaintiff and his failure to file a claim with defendant and give notice of the time, place and cause of and circumstances attending his injury, as prescribed by section 3746, Comp. St. 1922. In his reply plaintiff denied contributory negligence. Plaintiff had the Verdict and judgment thereon, and defendant appealed.
Defendant is a public corporation created by law for the purpose of taking charge of and operating public utilities owned by the metropolitan city of Omaha. It controls and operates the water and gas plants in said city. One of the instrumentalities used by defendant in carrying on its business is what is termed a “drag line.” This machine is a caterpillar tractor on which is erected a revolving platform, and on this platform is a crane, with a boom 30 to 35 feet long. To this boom is attached a dipper or clam shell. The machine is used in digging ditches and making excavations. The entire drag line weighs something over 16 tons and is propelled from one place to another by its own power. The revolving platform is about - 12 feet wide and 3 feet or more, above the ground. At the time of the injury complained of, defendant’s servants were moving the drag line along Thirtieth street in the city of Omaha at about the hour of 11:45 p. m., traveling in a northerly direction. In approaching Scott street, which intersects Thirtieth street, the ones operating this machine desired to turn eastward on Scott street. The drag line was traveling at the rate of about a mile or a mile and a half per hour, and had been on the east or right-hand side
Many errors are assigned by defendant for reversal. They may be grouped under the following heads (1) Plaintiff is not entitled to recover because of his 'failure to serve and file the written notice, stating the time, place and cause of the injury and other details, prescribed by section 3746, Comp. St. 1922; (2) plaintiff was guilty of such contributory negligence that, as a matter of law, it deprives him of the right to recover; (3) errors in the admission and exclusion of evidence; (4) errors in giving and refusal of instructions.
Plaintiff concedes that no notice or claim was filed by him with defendant, as prescribed by section 3746, Comp. St. 1922, but contends that the statute is void because, in its enactment, the provisions of section 14, art. Ill of the Constitution, were contravened. The constitutional provision referred to is as follows: “No bill shall contain more than one subject, and the same shall be clearly expressed in the title. And no law shall be amended unless the new' act contain the section or sections as amended, and the section or sections so amended shall be repealed.”
Section 3746, Comp. St. 1922, was originally enacted as chapter 90, Laws 1917, with the following title: “An act to amend section 2 of chapter 143 of the Laws of 1913,
“All -claims against said metropolitan water district arising out of contracts, must be presented in writing with a full account of the items verified by the oath of claimant, his agent or attorney, that the same is correct, reasonable and just, and no such claim shall be audited or allowed, nor suit maintained on such claim unless it has been presented to the board of the metropolitan water district, to be audited as herein provided. All unliquidated claims, including actions for injuries or damages to the persons or property hereafter sustained, must be filed, duly verified by the party, his agent or attorney, within twenty days from the date of the injury or damage complained of. Such statement must contain the full name, the time, the place, the nature of the defect, the cause of the injury and the amount of damage claimed, and a failure to file shall bar any action against the metropolitan water district upon such claim: Provided, in all claims for injury to the person or persons claiming to have been injured, said person or persons shall at any time after giving notice of such injury, be subject to a personal examination by the city physician of the metropolitan city within said water dis*715 trict, for the purpose of determining the character, cause and extent of the injury complained of; and a failure to submit to such examination shall prohibit the maintaining of any action against said metropolitan water district or recovery of any damage therefor. Said district may also produce and sell ice.”
It is the contention of plaintiff that the new matter, particularly that part pertaining to the filing of claims for personal injuries and giving notice to the district within 20 days of the injury, was not germane to the original section amended, and that therefore the act was broader than its title and contravened the above quoted constitutional provision.
It may be here noted that, by subsequent legislation, the name of the Metropolitan Water District has been changed to Metropolitan Utilities District, and the powers have been enlarged so as to permit a district to operate public utilities other than water-works.
It is a rule, firmly established in this, and generally recognized in other, jurisdictions, that, when the title of a legislative act is to amend a particular section of an existing statute, the proposed amendment must be germane to the subject-matter of the section sought to be amended. Miller v. Hurford, 11 Neb. 377; Trumble v. Trumble, 37 Neb. 340; State v. Tibbets, 52 Neb. 228; State v. Cornell, 54 Neb. 72; State v. Bowen, 54 Neb. 211; Armstrong v. Mayer, 60 Neb. 423; State v. Barton, 91 Neb. 357; State v. McShane, 93 Neb. 46; 1 Lewis’ Sutherland, Statutory Construction (2d ed.) sec. 137. The purpose of the constitutional provision was to prevent surreptitious legislation. The reason for the application of the rule is that the title expresses a purpose to deal only with the subject-matter contained in the section sought to be amended.
A careful examination of section 2, ch. 143, Laws 1913, being section 4244, Rev. St. 1913, discloses that the section deals only with the powers and duties of metropolitan water districts (now metropolitan public utilities districts). The matter sought to be incorporated by the amendatory
Defendant urges that it was the duty of the plaintiff, as motorman, to operate the street car at a rate of speed at which it could be stopped within the distance that an object could be seen upon the track by the aid of the headlight on the car, and that plaintiff evidently did not so operate his street car and was, therefore, guilty of such contributory negligence as would defeat his right of recovery. Many cases from other jurisdictions are cited which support, or tend to support, this proposition. However, we think they are not applicable to the situation existing in this case. There were, in fact, no objects upon the street railway track. The rays from the headlight on the street car no doubt were directed downward so as to show on the rails immediately in front of the car. The drag line, itself, was not upon the track, but only one corner of the platform projected out and over the track, some considerable distance above the rails, and it was only the edge of the platform that would be presented for view. It seems apparent that, until the street car was in close proximity to the drag line, the motorman, in the exercise of due care, might not have been able to see the obstruction or been aware of the danger of collision. The evidence on behalf of plaintiff tends to show that there was no light upon the rear end of the platform of the drag line, and that it was a rather dark night.
In an action for personal injuries, where the issues ten
We have carefully examined the entire evidence and are convinced that the questions of negligence and contributory negligence were questions for the consideration of the jury, and the jury’s finding is conclusive upon such questions, provided the case was properly submitted for their consideration.
During the trial defendant offered in evidence a certified copy of findings and order made by the state compensation commissioner in a proceeding wherein the Omaha & Council Bluffs Street Railway Company was plaintiff and the plaintiff in this action was defendant, and this evidence was by the court, on objection of plaintiff, excluded. This is assigned as error. We are unable to perceive wherein this evidence was competent for any purpose. It was not an adjudication between the parties to this action, and what the compensation commissioner might
It is asserted that the court erred in failing to give certain instructions requested by defendant. The first of the requested instructions which were refused, ,of which complaint is made, amounted to a direction of a verdict for defendant. It would have been error to have given the instruction. Complaint is made of other instructions, requested and refused, but an examination indicates that the principles of law involved were incorporated in the instructions which were given. Defendant complains of the fifth instruction, given by the court to the jury. That part of the instruction of which complaint is made is an exact copy of another instruction which was requested by defendant. If there was any error in the instruction, which we do not decide, it was invited by the defendant. A party will not be heard to complain of an error which he has invited.
No error prejudicial to the defendant has been pointed out or discovered. It follows that the judgment of the district court should be, and is,
Affirmed.
The following opinion on application to file amended and supplemental petition for rehearing was filed November 28, 1927. Application denied.
This case was determined and opinion filed July 1, 1927. It is reported, ante, p. 711. A motion for rehearing, after due consideration, has been denied. It now comes again before this court upon application of appellant for leave to file amended and supplemental petition for rehearing.
The court finds as a fact that appellant wholly failed to file a written request for a hearing to the full bench, as required by the terms of said rule, and wholly failed to make any request whatever on said subject at or prior to the final submission of said cause to this court; that said cause, after submission, was considered and determined by this court strictly pursuant to, and in accordance with, the provisions of rule 22 (now 65) and of section 2, art. Y of the Constitution of Nebraska.
The application for permission to file an amended and supplemental petition for rehearing is therefore denied and mandate directed to issue forthwith.
Application denied.