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.
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.
Page 67 U. S. 591
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 practicing 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.
MR. JUSTICE NELSON.
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.
Page 67 U. S. 592
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
Weighman v. Corporation of Washington, where all
the authorities will be found collected and examined.
66
U. S. 1 Black 39,
66 U. S.
51-53.
The plaintiff was a practicing 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,
20 How. 34,
61 U. S. 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
Page 67 U. S. 593
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.
