O'Loughlin v. City of Pawnee City

Pose, J. For personal injuries caused by falling on a defective sidewalk, plaintiff recovered a judgment against defendant for $1,000, and the latter has appealed. Under issues properly raised by the pleadings, there is proof tending to show: The sidewalk on which plaintiff was injured had been constructed on the .surface of the ground by nailing boards across stringers. Some of the boards were loose, some were missing and others were broken. When walking on the sidewalk, plaintiff saw the condition of the boards ahead of her, and in attempting to get off was thrown by a loose board. Her right shoulder was dislocated, causing a laceration of the capsule of the shoulder joint. The injuries were permanent, limiting the action of the joint and resulting in atrophy of some of the muscles of the shoulder and arm. She was a professional nurse and her earning capacity as such was permanently impaired. Insufficiency of the evidence to sustain the verdict is the first point argued. While the testimony is conflicting in some respects, a careful consideration of all the proofs adduced by both parties has led to the conclusion that the jury were justified in finding from the evidence that plaintiff, without negligence on her part, was injured through the negligence of defendant in failing to keep the sidewalk in a reasonably safe condition for travel at the [246] place of the injury, and that the damages sustained amounted to $1,000. Defendant insists it was not negligent, for the reason that the sidewalk was on the outskirts of the city; that the accident occurred near the end of the sidewalk where it was not frequently used by the public; that the sidewalk had been repaired two months before- plaintiff! was injured and that there was no subsequent notice of the defects. This argument is untenable for the following reasons: The jury found in favor of the plaintiff on proof that the walk was within the city limits, that the repairs were insufficient, and that after they were made defendant had been notified of the unsafe condition of the walk. Conceding the sidewalk was on the outskirts of the city and infrequently used by the public, those facts would not justify defendant’s failure to make repairs. City of Ord v. Nash, 50 Neb. 335; City of South Omaha v. Powell, 50 Neb. 798. Besides, there is proof to justify a finding that the walk at -the place of the injury had been in an unsafe condition for a year or more.' This was sufficient to charge defendant with notice of the defects. City of Lincoln v. Smith, 28 Neb. 762; Olmstead v. City of Red Cloud, 86. Neb. 528. A reversal is also asked because defendant never had any written, statutory notice of the defective condition of the sidewalk, nor of the nature and extent of the injury, nor of the time and place thereof. Defendant is a city of the second class having less than 5,000 inhabitants, and its charter at the time of the injury did not require such. notice. Olmstead v. City of Red Cloud, 86 Neb. 528. Plaintiff did, however, before bringing suit, file her claim with the city council. It i^ also contended that the sidewalk is not located upon any street, alley or other property of the city as required by ordinance, and that therefore the city is not liable for damages. On this point it is said the street was originally 33 feet wide, that the sidewalk is not within the limits thereof, and that the street has never been ex [247] tended to include tlie sidewalk space. Defendant cannot escape liability on this ground. In its brief it is admitted that the sidewalk is inside the city limits. The proofs show that the sidewalk runs along the street in the usual place in front of abutting lots. It was constructed under the directions of the city perhaps five years before the accident and has been used by the public ever since. In the meantime it has been under the control of the city. Under such circumstances it was the duty of the city to repair the sidewalk, and it is liable to plaintiff for the damages resulting from its negligence in failing to perform that duty. Severa v. Village of Battle Creek, ante, p. 127; City of South Omaha v. Powell, 50 Neb. 798; City of Ord v. Nash, 50 Neb. 335. Some of the instructions are assailed as erroneous, but most of the criticism is directed to those in harmony with the rules just stated, and in the others no error prejudicial to defendant has been found. All of the assignments have been examined without finding a reversible error, and the judgment is Affirmed.