Forbes v. City of Omaha

Ames, C. This is an appeal by the defendant from a judgment recovered in an action for damages for personal injuries, [7] occasioned by a fall on a walk crossing one of the considerably traveled streets of the city, which is alleged to have been negligently permitted to remain in a defective and dangerous condition. 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 [8] rainy, season was ended and further repairs had been made, we, of course, do not know, but we are not ready to hold, as we are urged to do by counsel for plaintiff, that such an inspection precludes in all cases the party at whose request it is made from complaining that the verdict is unsupported by the evidence. No Withstanding such an inspection, after the surroundings are much changed, uncontradicted evidence of unquestioned certainty and evident conclusiveness might still demonstrate that the jury were misled and that their verdict lacked sufficient support. But we do not think that claim in this instance is Avell founded. A great number of decisions in someAvhat similar cases, both by this and by other courts, are cited by counsel for both parties, but such decisions are, of course, upon the peculiar circumstances of particular cases, varying from each other much in detail and as to minor and contributing incidents, so that they can hardly be said to be authoritative upon the facts in this or any other like case. The mere inclination of the sidewalk is not alone conclusive, but must be considered in connection Avith the condition of its surface, and the hole underneath, and the proximity of the manhole, and the fact, known to the city, of frequently recurring floods and washouts, and the suitableness and sufficiency of the means and methods adopted by the defendant to repair the walk and surroundings, and put and keep them in a reasonably safe condition. Of all these matters, and the like, the jury were peculiarly qualified to judge, and we think that the defendant has no just ground of complaint that the question of negligence Avas left to their determination. 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 [9] able, and that the court erred in submitting it to the jury over his objection. Section 454 of the code enacts that, “in addition to the causes of action which survive at common law, causes of action for mesne profits, or for injury to real or personal estate, or for any deceit or fraud, shall also survive,” and we understand counsel to concede, wliat seems to be settled law, that causes of action which survive are assignable. Now it is quite clear that the husband’s canse of action was for injury to his personal estate arising out of his obligation to support and care for his wife in sickness and in health, and was so far disconnected from that of his wife that it would not have been affected by her death before suit begun, and that it would have survived to his personal representative in event of his own death. His cause of action is not directly in tort for trespass upon his own person, but as the older lawyers would have said, “in case” for consequential damages to his estate, and as the bona fides of the transfer is not questioned Ave think the objection is not Avell taken. This view is, we think, supported by the better and more recent authorities. Baxter v. City of Cedar Rapids, 103 Ia. 599; Cregin v. Brooklyn C. R. Co., 75 N. Y. 192; Cregin v. Brooklyn C. R. Co., 83 N. Y. 595; Henderson v. Henshall, 54 Fed. 320; Pomeroy, Remedies and Remedial Rights (2d ed.), sec. 147. 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 [10] is sufficient to say that the statute does not expressly or by necessary implication require such description, and it is to be supposed that the legislature intended the. clerk to look elsewhere for the information necessary to complete his record. The recent decision of this court in Wright v. City of Omaha, 78 Neb. 124, is authority, if any is needed, for holding that the notice is sufficient if it contains what the statute prescribes. 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. Oldham and Epperson, CC., concur. By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be Affirmed.