Opinion
DECEMBER TERM, 1862.
1. Municipal Corporations upon which the duty is imposed to construct and repair, or to keep in repair streets and bridges, and upon which is also conferred the means of accomplishing such duty, are liable for any special damage arising from their neglect to perform it. 2. In an action for damages sustained by such neglect, evidence showing the business in which the plaintiff was engaged, its extent and the consequent loss arising to him from his inability to prosecute it, is relevant and pertinent, as enabling the jury to fix, with some certainty, the direct and necessary damages resulting from his injuries.
Mr. Taylor, of Nebraska, for Plaintiff in Error.
Mr. Woolworth, of Nebraska, contra.
Error to the Supreme Court of the Territory of Nebraska.
John T. Campbell brought his action against Nebraska City in the Court of the Second Judicial District for Otoe County. and alleged in his petition that the defendant, being a municipal corporation, had, by its charter, the title and control of the streets, alleys, squares, wharves, and other highways and public grounds within its limits, and was bound to keep them in repair. That the defendant was so bound to keep in repair a certain bridge on South street, across Tabb Creek; but, contrary to its legal duty, left that bridge without side-railing, and in other respects unsafe and defective, by reason of which, the plaintiff a physician, visiting his patients, in a buggy, was thrown from the bridge and greatly injured, so as to prevent him for a long time from practising his profession.
The City denied its legal liability for such damages under any circumstances, and averred that the plaintiff got his injuries by his own fault; for he was thrown over the bridge in consequence of the viciousness of his horse, which he was carelessly driving without a whip, and which had taken fright at a paper posted on the bridge by a third party.
The jury found a verdict in favor of the plaintiff for $3,000 damages, and after an unsuccessful motion by the defendant in arrest of judgment, the Court gave judgment on the verdict. The cause was taken, by the petition of the defendant, to the Supreme Court of the Territory, where the judgment was affirmed, and thence it came to this Court by writ of error sued out by the City.
This is a writ of error to the Supreme Court of the Territory of Nebraska.
The suit was brought in the Court below by Campbell against the City to recover damages for injuries received by reason of a defective bridge in one of the streets in the City.
The charter vested in the City Council the title to all the streets within the corporate limits, and it is made their duty to construct and improve the same at the public's expense; for this purpose, and others, the counsel are authorized to levy a tax on all the taxable property within the City. This provision in respect to streets necessarily embraces all bridges within the limits of the City and constituting a part of the street.
There is also a general act referred to, which, among other things, confers upon all incorporated Cities exclusive jurisdiction over all streets, roads, bridges, and ferries within their corporate limits, and exempting the inhabitants from any assessment for road tax except by the corporate authorities of the same.
The law is well settled in respect to public municipal corporations, upon which the duty is imposed to construct and repair, or to keep in repair streets or bridges, and upon which is also conferred the means of accomplishing such duty, that they are liable for any special damage arising out of neglect in keeping the same in proper condition.
The principle was very fully considered at the last term in the case of Weightman v. The Corporation of Washington, where all the authorities will be found collected and examined. 1 Black, pp. 39, 51, 52, 53.
The plaintiff was a practising physician, and in the course of the trial evidence was given, after objection, that he was engaged in extensive practice at the time of the injury, and also that it was a period of great sickness in the community.
The declaration states that the plaintiff was a physician at the time of the injury, and after describing the nature and extent of it, adds that by reason thereof, he was greatly bruised, sick and lame, and so continued for a long space of time, to wit, for the space of six weeks, and during all that time suffered great pain, and was prevented from transacting his ordinary business as a physician during that time.
Now, the evidence in question was relevant and pertinent, with a view to show the extent and amount of the ordinary business of the plaintiff in his profession, of which it is averred he was deprived during the time of his disability, and laid a foundation which enabled the jury with some degree of certainty to ascertain the direct and necessary damages sustained from the injuries.
In the case of Wade v. Leroy et al., (20 How., 34, 43, 44), which was an action for injuries to the plaintiff for carelessly navigating a ferry boat, the Court held that proof of the ordinary business in which the plaintiff was engaged, and that he was largely engaged in it, was admissible and pertinent upon the question of damages, though the fact was not set out in the declaration. The proof was regarded as showing the direct and necessary loss or damage from the injuries sustained.
The case before us is broken into many points, and prayers to the Court for instructions to the jury, but those noticed above cover all that is material to dispose of it.
Judgment of the Court below affirmed.