77 Neb. 710 | Neb. | 1906
Tbe plaintiff and appellee, George M. Nicholson, brought this action against the city of South Omaha to recover damages alleged to have been sustained on October 31, 1903, in consequence of the defective condition of a sidewalk extending along the east side of Thirteenth street between M and N streets in said city. A verdict was returned in favor of the plaintiff below for $500, and from a judgment entered thereon the defendant city has appealed. It is one contention of the city that the court had no jurisdiction to try the case; that by the provisions, of section 107, ch. 17, laws 1903, the claim was■ one which had to be presented to the city council for its action, and an appeal taken from the finding of the council to the district court if the claimant was not satisfied with the amount allowed him. A construction of that section
Relating to claims founded on contract, express or implied, whether the damages be liquidated or unliquidated, the presentation of such claims to the city council for its action, and an appeal therefrom, is clearly contemplated by the first part of the section. . So, too, we think that on claims sounding in tort, in those cases where the claimant might maintain an action against the city at common law, a presentation to the city council, and an appeal from its action, is the only way of reaching the district court. The latter part of the section, however, seems to contemplate that class of actions not known to the common law and given to a party by statute, viz., damages for personal injuries arising from the neglect of the city to keep its streets, alleys, sidewalks, public parks or other public places within the city improper repair and safe condition for use by the public.' So far as this class of actions is concerned, there is no doubt that, in order to recover, the claimant must bring himself within every provision of the statute giving him a right of action. The common law did not recognize such a claim. The legislature, in giving a right of action therefor, may impose upon the injured party any condition which it thinks proper. One condition is that he shall, within 20 days, give notice in wifit-ing to the city council of the nature and extent of his injuries, and of the time when and the place where the
It will be observed from this reading of the statute as amended that claims for the taking of property for public use and those for injury to the person or property on account of negligence are not required to be presented to the city council, and that original action may be brought against the city in the district court notwithstanding the broad language of the first part of the statute requiring all claims and demands, whether of contract or in tort, to be so presented. The uniform course of legislation in this state has been to allow original suits to be brought against municipalities in cases of personal injury, and we cannot now call to mind any act of the legislature denying to one having a cause of action against a municipality for a personal injury received the right to institute an action in court for his damages without first presenting his claim to the governing body of the municipality for allowance. The right of one suffering from a personal injury to present his claim to the city council for allowance cannot be disputed, and if he does so, then, in order to recover a greater amount than allowed by the council, he must, under the statute now in force, proceed by way of appeal to the
A second claim made by the city is that the plaintiff himself was negligent, and that contributed directly to his injury. The accident happened in the evening after dark. There was no street light in the near vicinity of the place where the accident is claimed to have occurred. The plaintiff is an old man and somewhat enfeebled. The evidence for the plaintiff shows that the walk had been defective for some months-. It shows, further, that the plaintiff himself knew of the defective condition of the walk, and had passed it on numerous occasions, as it was the only passable way to reach the qity from the place of his residence during bad weather and a muddy condition of the ground. He frankly states that on the night in question he was not thinking of the dangerous condition of . the walk at the time he approached it, that his mind was absorbed by a matter of business upon which he had been engaged during the day and which he was anxious to conclude. He does not claim that his attention was diverted by any passing object or by anything taking place which distracted his attention. Under this state of the evidence
We think this instruction assumes as a fact one element that was not clearly shown and which was properly left to the jury. It is not at all clear, as stated in the instruction, that the plaintiff was not deceived or misled by darkness as to the whereabouts of the defect. On his cross-examination the question was plainly put to him whether he could have seen it if he had been thinking about it, and his answer is: “It was dark; I do not know.” The fifteenth instruction of the court gave to- the city every advantage to which we think it was entitled regarding the plaintiff’s knowledge of the condition of the walk and the care required of him to avoid an injury. As stated in many cases, it is not the plaintiff’s knowledge of the defect in a walk or street that precludes his recovery, but it is his want of such care as a prudent man would exercise in view of the danger. This is usually a question which must be left to the jury, and it is only in a clear case that the court will, as a matter of law, direct a verdict in consequence of contributory negligence on the part of the plaintiff. The case appears to have been carefully and fairly tried, and, while we would not have been dissatisfied with a verdict for the defendant, we cannot say that any errors of law prejudicial to the city are shown by the record.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.