86 Neb. 722 | Neb. | 1910
This is the second appeal in this case. The action was one to recover damages for the alleged negligence of the defendant in constructing and maintaining a stairway from the Eleventh street viaduct to Leavenworth street in the defendant city, which it is claimed caused the death of plaintiff’s intestate.
The question presented for our consideration .upon the former appeal was one of negligent construction, and it was there said: “Where a city in the erection of a public work exercises reasonable care and judgment, and adopts plans approved and recommended by engineers having all the knowledge that skill and experience in such work would naturally give them, it should not be held liable
It appeared upon that hearing that the plans and specifications for the improvement in question were submitted by contractors, and the one adopted had the approval of Andrew Rosewater, city engineer of the defendant; and, also, of the chief engineer of the Burlington railroad; the chairman of the board of public works of the defendant, at one time chief engineer of the Union Pacific Railroad Company; and of another engineer, who had occupied a sú Jar position. They were all of recognized and known amity, and eminent as civil engineers. They recommended the adoption and approval of the plans by the board of public works, and, acting upon their advice and recommendations, the plans were adopted by the board, and afterwards approved by the city council, and the viaduct was constructed according to those plans and specifications. A rehearing was granted upon the application of the plaintiff, and a second opinion was written, which will be found in 76 Neb. 859. It was there further said: “The improvement of which the stairway in question is a part is of such a character that it could be planned and constructed only by men of peculiar skill and knowledge in that line. The city authorities therefore were compelled to enqploy experts to plan and construct it. In doing so they did precisely what a man of ordinary care and prudence would have done in like circumstances. Where, then, is the point of departure from the course of conduct such a man would have pursued? Is it in the adoption of the plan? They had employed men skilled in their profession to prepare it. Had they not a right to rely on the superior judgment and skill of such men? Would not a man of ordinary care and prudence have done so in like circumstances, unless the plan was so obviously defective that there could be no difference of opinion among reasonable men with respect to it?”
It áppears, however, that the question of construction was not only submitted to the jury, but they were allowed by the trial court to visit the viaduct for the purpose of AdeAving its construction, and this too, notAvithstanding the fact that the stairway, from the top of which the plaintiff’s intestate fell and was killed, had been réimwed and was no longer a part of the improvement. It is true that there were other stairways leading from the viaduct at other points to the street beloAV, but the one in question had been removed prior to the date of the last trial.
It is contended by the plaintiff that the defendant city failed to prove that the plans and specifications for the construction of the improvement had been adopted by the city council. The record of the proceedings of the council in relation to that matter not only established that fact, but Mr. RoseAvater, who was the city engineer at the time the viaduct was constructed, testified as follows:
Again, to entitle plaintiff to recover on the ground of negligent or improper construction, it was incumbent upon her to establish such negligence by a preponderance of the evidence. After a careful reading of the bill of exceptions, we are constrained to say that she failed to meet that requirement. Her expert witnesses appear to have had no experience in the construction of viaducts and stairways. They were unable, from observation, to give the dimensions or height of the stair railing in question. It is true that they testified as to the height of standard railings used in such construction, which was on an average of about 39 inches. It appears from a diagram of the railing in question, found in the bill of exceptions, that at the heel of the tread or step it was 3 feet and 3 inches high. At the middle of the step it was 2 feet 1T| inches high, while at the front edge of the step it was 2 feet 7-J inches in height. It thus appears that the railing in question was of the standard pattern and height. The defendant’s witnesses, who had examined stairways in many public buildings, testified that the railings thereon were practically of the same height as the one in question. In fact, no witness has testified that the construction was in fact an improper or faulty one. Therefore, it cannot be said that it was such “that all reasonable minds must agree that it was unsafe.” The record, therefore, affords no excuse for submitting that question to the jury.
Considering the question of the defective condition of the steps: It is extremely doubtful if plaintiff’s evidence was sufficient to sustain a verdict upon that ground. It is true the plaintiff, some days after the happening of the accident—the number of days not being given—examined the top steps of the stairway in question, and her testimony was, in 'Substance, as follows: Well, this is about the way I saw it. All the edge was worn off. The step was kind of slanting toward the front edge of the step,
It is contended by the plaintiff: that this was a proper question for the jury, and therefore the judgment must be affirmed. While, on the other hand, the defendant contends that where damages are occasioned by one of two causes, for one of which the defendant is responsible, and for the other of which it is not responsible, it is reversible error to submit both causes for the determination of the jury. We think this contention is well founded, for it is impossible to determine upon which of the two grounds the jury based their verdict. As above stated, the plaintiff was not entitled to recover upon the ground of negligent construction; but, that question having been submitted to the jury, it is not only probable but reasonably certain, in view of the want of competent evidence to prove a defective condition of the steps at the time of the accident, or that such condition in any way contributed to the injury complained of, that negligent construction was the ground upon which they based their general verdict. With this condition confronting us, it is our duty to grant the defendant a new trial.
It is contended, however, by the plaintiff that, because the defendant requested the trial court to instruct upon that point, it is now estopped to complain of the submission of that question to the jury. The record discloses that defendant demurred to the plaintiff’s evidence upon that point, and asked to have it excluded. Defendant also requested the court to direct the jury to return a verdict in its favor, at the close of all of the evidence, and asked the trial court to direct the jury to make special findings on that matter. All of which requests were refused. Having been thus compelled to submit that question to the jury, defendant is not estopped to question such submission. Sorensen v. Sorensen, 68 Neb. 509.
For the foregoing Reasons, the judgment of the district
Reversed.