79 Neb. 6 | Neb. | 1907
This is an appeal by the defendant from a judgment recovered in an action for damages for personal injuries,
The accident occurred on the 5th day of June. It is not alleged that the walk was dangerous or defective at the date of its construction in the month of March preceding, but the season in the interval was characterized by frequent heavy rains, which washed dirt over the walk near one end, where the accident happened, rendering it muddy and slippery, and gullied the earth out underneath it at that place, so that the structure sagged to a gradient of about one inch to the foot toward one side. The injury was suffered by slipping from the walk in the night time and falling upon an iron cover of a manhole situated close by. There is little, if any, conflict in the evidence as to any important fact. From at least the 10th day of May onward there were frequent heavy rains, which washed ont a hole at the place of the accident from 16 to 18 inches deep, and the hole had been as frequently filled by the city with loose dirt, which had been banked up around the edges of the walk, but the walk itself was not raised to grade where it sagged. The walk Avas three feet wide, and the north side thereof became and was permitted to remain some three or four inches lower than the south side at the point Avhere it' was muddy and slippery near the manhole. One such washout had occurred and had been partly repaired, in the manner described, on the 2d of June, three days prior to the accident. We are not clear Iioav much rain fell in the interval, but on the morning after the accident the walk was found to be slippery with mud and inclining to one side, and there was a hole some 18 inches deep underneath it and around the manhole.
At the request of the defendant the jury were permitted to visit the premises, and hoAV much they Avere enlightened by viewing the scene months after the event, Avhen the
The petition alleged two causes of action, one for the injury to plaintiff’s health and person, and the other as an assignee of a demand for the pecuniary loss and damage suffered by her husband by reason of being deprived of her services, and of moneys expended for medical attendance and treatment, etc. Counsel for defendant contends that this last cause of action, as alleged, is not assign
The statute provided that the city should not be liable in such actions, unless within 20 days after the happening of the accident Avritten notice thereof, “with a statement of the nature and extent thereof, and of the time when and the place AAdiere the same occurred,” should be given to the mayor or city clerk. A notice conformable to the statute was given within the time specified, but a subsequent clause of the statute requires the clerk to keep a record of the notice, “shoAving the time when and by whom such notice was given, and describing the defect complained^ of,” and it is hence complained that the notice, to be effectual, must contain such description, but we think it
There are other assignments of error, but they are involved in and disposed of by the foregoing discussion and .lo not require1 specific decision.
We recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be
Affirmed.