City of Omaha v. Jensen.

the most remote and general way embraced in the motion for a new trial. It is not assigned in the petition in error. (Dietrichs v. R. Co., 13 Neb., 48; R. V. R. Co. v. Hayes, Id., 491; Yates v. Kinney, 25 Id., 122.)

MAXWELL, CH. J.

The defendant in error brought an action against the city of Omaha to recover for personal injuries caused by falling into an excavation in that city, which was negligently left without guards or other protection. The city pleads two defenses: First, that the injury was caused by the negligence of the party injured; and, second, that the sewer trench described in plaintiff's petition was at said. date being constructed under a contract made to the lowest bidder as provided and required by the charter of the city of Omaha in that regard, and under and by virtue of the terms of said contract the contractor was to erect and maintain the necessary guards, signals, and protection on and around said work, so as to prevent the danger of accidents to travelers upon the street, and that under and by virtue of the terms of said contract, the defendant, the city of Omaha, had nothing whatever to do with the maintaining of such guards, signals, and protections, and the defendant further saith that it had no knowledge, directly or otherwise, that the contractor was not maintaining the necessary and proper guards, signals, or protection, and that the defendant did not have notice that such signals, guards, or protections were not maintained by said contractor." On the trial of the cause the jury returned a verdict in favor of Mrs. Jensen for the sum of $2,000, on which judgment was rendered.

It is contended, first, that the city was not liable, for the reason that the proof shows that it had expressly stipulated with the contractor that he should place guards around the excavation, and that it had no actual notice of his failure to supply them, and that the danger had not existed a suf

City of Omaha v. Jensen.

ficient length of time to charge the city with the implied notice. The attorney for the city thereupon requested the court to give the following instruction: "The jury are instructed that under the terms and conditions of the contract, introduced in evidence by the defendant, under which the sewer was being constructed, the city is not liable in damages to the plaintiff for the failure of the contractor to place or maintain guards or signals, unless you find from the evidence that the city, by and through its officers, had actual knowledge that guards or signals were not put up over the sewer as a warning to travelers on that part of the street. Whereas this sewer trench had been dug on the very day of the happening of the accident, you are instructed, as a matter of law, that the want of signals or guards upon that evening had not existed for a sufficient length of time to constitute constructive or presumptive notice to the city that the sewer was left unguarded and unprotected, so there could be no recovery in this case unless the plaintiff has proven that the city, through its proper officers, did have actual knowledge that the contractor had omitted to put up the proper signals or guards, and that after such knowledge had come to the officers or its proper agents, they had length of time to see that the same were put up before the accident happened. You are further instructed that the plaintiff does not claim to have introduced any evidence to prove that any officers of the city of Omaha had any actual knowledge that guards and signals were not put up by the sewer trench, you should therefore. find for the defendant." This the court refused to give, to which exceptions were duly taken. In this there was no error. Where the injury is the result of the work itself, however skillfully performed, and not in the manner of performance, the city will be liable for an injury sustained by a party in the exercise of due care; in other words, where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agrees or is authorized

City of Omaha v. Jensen.

to do, the person who causes the obstruction or defect will be liable. Thus, suppose the city caused a ditch to be dug across the street and the same should be left open and unguarded, the city cannot plead as a defense that the contractor agreed to keep guards around the excavation, be cause it cannot surrender its control of the streets so as to relieve it from liability. (Palmer v. City of Lincoln, 5 Neb., 136; McAllister v. Albany, 23 Pac. Rep. [Ore.], 845; Storrs v. Utica, 17 N. Y., 108; Robbins v. Chicago, 4 Wall. [U. S.], 679; Circleville v. Neuding, 41 O. St., 469.)

In the case last cited it is said: "The relation between the city and Barndt was clearly that of employer and independent contractor, and the rule is generally that for injuries occurring in the progress of work carried on by parties in that relation, the contractor alone is liable. But this liability is limited to those injuries which are collateral to the work to be performed and which arise from the negligence or wrongful act of the contractor or his agents or servants. Where, however, the work to be performed is necessarily dangerous, or the obligation rests upon the em ployer to keep the subject of the work in a safe condition the rule has no application. This distinction has been taken in this state in a number of cases: Carman v. Railroad Co., 4 O. St., 399; Tiffin v. McCormack, 34 Id., 638; Hughes v. Railway Co., 39 Id., 461; and elsewhere in McCafferty v. Railroad Co., 61 N. Y., 178; Prentiss v. Boston, 112 Mass., 43; City of Logansport v. Dick, 70 Ind., 65; Crawfordsville v. Smith, 79 Id., 308; Robbins v. Chicago, 4 Wall. [U. S.], 657.

In this case the cistern contracted for was to be built in a street, and to be eighteen feet wide and twenty feet deep. Such an excavation in a street, unless protected to guard persons and animals using the street from falling into it, was necessarily dangerous. The city was under the statutory obligation at the time of the accident to keep its streets open, in repair, and free from nuisance, and it could not

City of Omaha v. Jensen.

cast this duty upon a contractor, so as to relieve itself from liability to one who should receive an injury. It is primarily liable for an injury resulting from such dangerous place in a street. No doubt a city may require a contractor to indemnify it against loss for damages caused by his negligence in the performance of the work, but that question is not before us.

Second-It is claimed the city is not liable, because it had no notice, either actual or constructive. In a case of this kind no notice is necessary. The city had authorized the excavation in question and it was its duty to see that the proper guards were placed around it.

Third-It is claimed that the court erred in admitting the testimony of Nels Christensen. It appears from the record that Christensen's testimony had been taken by the court's stenographic reporter on a former trial of this case. This testimony was objected to "for the reason that no sufficient cause has been shown for reading that testimony." The objections were overruled and the testimony admitted. In this it is claimed there is error, and we are referred to the case of Spielman v. Flynn, 19 Neb., 342. In that case it was held that a certified copy of the stenographic reporter's record of proceedings in the district court is admissible in all cases where the original would be. That, we think, is a correct statement of the law on that point. In the case at bar Christensen is shown to have been absent from the state, and his testimony on a former trial, if otherwise unobjectionable, is admissible. The objection is not to the mode of certifying the evidence. Had it been, as the stenographic reporter was present in court, no doubt he would have made the proper certificate. The objections were properly overruled. There is no error in the record and the judgment is

THE other judges concur.

AFFIRMED.

Haman v. Omaha Horse Ry. Co.

CHRISTIAN F. HAMAN V. THE OMAHA HORSE RY. Co.

[FILED JUNE 30, 1892.]

1. Assault: WORDS OF PROVOCATION alone will not justify an assault, although they may constitute a ground of mitigation of damages.

2.

3.

: STREET RAILWAYS: IN EJECTING A PASSENGER from the street car the conductor can use no more force than is necessary for that purpose, and if he do so the company will be liable. -: MEASURE OF DAMAGES. The rule as to the measure of damages as stated in the tenth paragraph of the instructions in McClure v. Shelton, 29 Neb., 374, 375, approved.

ERROR to the district court for Douglas county. Tried below before HOPEWELL, J.

C. A. Baldwin, for plaintiff in error:

The company is liable for the act complained of (McKinley v. R. Co., 44 Ia., 314; Goddard v. R. Co., 57 Me., 202; Hanson v. R. Co., 62 Id., 84; Bryant v. Rich, 106 Mass., 180; N. W. R. Co. v. Hack, 66 Ill., 238; Craker v. R. Co., 36 Wis., 657; Smith v. R. Co., 23 O. St., 10; Rounds v. R. Co., 64 N. Y., 129; Peck v. R. Co., 70 Id., 587; Shea v. R. Co., 62 Id., 180.)

Geo. E. Pritchett, contra:

If the assault was as claimed, the defendant is not liable, because the same was a willful trespass and entirely outside the driver's employment. (McManus v. Crickett, 1 East Term [Eng.], 106; Isaacs v. R. Co., 47 N. Y., 123; Towanda Coal Co. v. Heeman, 86 Pa. St., 418; Coleman v. R. Co., 106 Mass., 174.) A new trial may not be granted on account of the smallness of damages. (Shoff v. Wells, 1 Neb., 168.)