98 Neb. 148 | Neb. | 1915
In South Omaha plaintiff fell into an excavation in a public alley, running north and south midway between and parallel to Twenty-seventh and Twenty-eighth streets, and sprained her ankle. The accident occurred near the south lot line of E street where the alley crosses it at right angles. This is an action to recover damages in the sum of $5,000 for personal injuries resulting from plaintiff’s fall. Defendants are the city of South Omaha and Hugh Murphy. The latter was a paving contractor and made
The principal argument of defendants is directed to the assignment that the trial court erred in refusing to direct a verdict in their favor. They insist that the testimony of plaintiff shows she was injured through want of care on her part. She lived at the southwest corner of the intersection. The east side of her lot is adjacent to the alley, and her house fronts north on E street. She had opportunity to observe the progress of the work and she knew the conditions as they existed. After the sidewalk had been removed, the alley was graded south from E street to the lot line. The excavation was at least tAvo feet deep, and turned the traffic over adjacent lots, crossing the alley on comparatively level ground and wearing a path around the graded space. There is evidence tending to show that the sidewalk travel had taken this course for a week or more at the time of the accident. During the afternoon of July 10, 1909, plaintiff left her home and followed the path described, walking east on the south side of E street. In returning after dark she attempted to retrace her course around the excavation and, according to her testimony, fell into it. She was not guilty of contributory negligence, as a matter of law, because she attempted to follow the path and thus avoid known danger. Want of ordinary care, and not knowledge of the danger, is the test of contributory negligence. A traveler who knows of a dangerous excavation in a sidewalk is not guilty of con-
It is further argued that there should have been a peremptory instruction in favor of defendants, because, as they assert, plaintiff, according to her own testimony, fell into the excavation from a private lot. There being proof that the public was not protected by barricades or danger signals, defendants state their position as follows :
“A city owes no duty or obligation, where it has excavated a street or alley to erect barriers or signals for the protection of persons approaching such street or alley from .private property, or to prevent such persons from falling from such private property into such street or alley.”
For the purpose of the argument, it will be assumed that plaintiff approached the alley from private property. Starting from that premise, did she make a case for the determination of the jury? She testified positively that in the darkness she fell into the excavation. It did not end at a perpendicular wall along the lot line across the alley. From the bottom of the excavation at the south end the ground sloped southward to the original surface of the alley. The dangerous conditions, therefore, did not terminate at the south lot line of E street, but extended farther into the alley adjacent to private property. The sloping area south of the street line was part of the excavation itself. Around it the traffic, by the acts of defendants, was turned from the sidewalk to the path. These facts and conclusions may fairly be inferred from the evidence. Under such circumstances, the duty to protect the public extended to the southern extremity of the excavation. Injury could reasonably have been foreseen. The alley was a public way to which defendants had access. They could have given protection from the alley without trespassing on private property. A city should exercise ordinary care to
The issues of negligence and contributory negligence were questions for the jury. It follows that the refusal to give a peremptory instruction in favor of defendants was not erroneous.
Defendants also insist that there is a material variance between the pleadings and the proofs. They argue that proof of plaintiff’s having fallen into the alley from pri
“No variance between the allegation in a pleading and the proof is to be deemed material unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits.” Rev. St. 1913, sec. 7706.
The point is not well taken. Niblett v. Nashville, 12 Heisk. (Tenn.) 684; Rea v. Sioux City, 127 Ia. 615.
Another assignment of error challenges the trial court’s refusal to give a requested instruction that plaintiff is not entitled to recover damages, if proper and sufficient barricades and lights, provided by defendants, had been removed by an unknown person before the accident. Under the evidence defendants were entitled to an instruction on this phase of the defense; but their rights were protected by another direction that defendants would not be liable, if they used ordinary care in placing and maintaining barriers and signals.
If there is no mistake in the views already expressed, there is no prejudicial error in the record.
Affirmed.