Whelan v. City of Plattsmouth , 87 Neb. 824 ( 1910 )

Rose, J.

Defendant lowered the surface of the street in front of two lots owned by plaintiff, and this is a suit to recover resulting damages. The liability of defendant and the extent of plaintiff’s injury were issues properly raised by the pleadings. From a judgment on the verdict of a jury in favor of plaintiff for $150, defendant has appealed.

1. On motion of plaintiff the trial court struck from defendant’s answer matter containing allegations to the effect that plaintiff advised, consented to and accepted the grading in front of his lots and was thereby estopped from claiming damages. There was an exception to this ruling which is now challenged as erroneous. In respect to the question thus raised, however, it is sufficient to say that defendant’s exception was waived in the following manner: After the motion had been sustained, defendant, by leave of court, filed a new or amended answer, omitting all reference to the principal facts which had formerly been pleaded as an estoppel, and went to trial on the amended pleading, which contained no statement indicating a purpose on part of the pleader to save the exception to the ruling on plaintiff’s motion. The exception was therefore waived. Papillion Times Printing Co. v. Sarpy Gounty, 85 Neb. 397.

2. At the opening of the trial defendant objected to the introduction of any evidence because plaintiff failed to state in his petition that he had filed with the city clerk his claim for damages and' that it had been rejected by the city council. The overruling of this objection is the basis of another assignment of error. In the argument on this point defendant cites City of Hastings v. Foxworthy, 45 Neb. 676. Under the act in force when that case was instituted, a claimant was required to file a statement of his claim with the city clerk as a condition precedent to his right to maintain in the district court an original action for damages. The law has since been changed. When the claim of plaintiff in the present case arose, the Plattsmouth charter required him to file it with the city clerk and, in the event of its disallowance, to appeal from the city council to the district court. Comp. St. 1909, ch. 13, art. III, sec. 38. Under the former charter the district court acquired jurisdiction in an original action. Now jurisdiction is conferred by appeal from the action of the city council. The record of the proceedings of the district court was filed in this court by defendant. The transcript here does not disclose the jurisdictional facts. In this condition of the record submitted by defendant for review, it will be presumed that the case was appealed to the district court 'in the manner provided by the city charter, ■ and that consequently there was filed therein a transcript showing that plaintiff presented his claim to the city clerk and that it was rejected by the city council. Comp. St. 1909, ch. 13, art. III, sec. 38. It was therefore unnecessary for plaintiff to allege those facts in his petition in the district court.

3. Complaint is also made because the trial court refused to permit the jury to view the premises alleged to have been damaged. The contention is not well founded. By means of photographs the parties acquainted the jury with the general appearance of the premises both before and after the street had been graded. The depth of the cut and the effect of the grading were shown by oral proofs. The record contains nothing to indicate that the trial court abused its discretion in refusing the request. It follows that in this respect error is not affirmatively shown. Beck v. Staats, 80 Neb. 482; Reams v. Clopine, ante, p. 673.

4. An instruction on the subject of special benefits shared by plaintiff in common with other lot owners is criticised as erroneous. While the particular instruction in question cannot be approved as a correct statement of the law, the record contains no evidence to make it prejudicial to defendant, when consideration is given to other parts, of the charge in which the jury were directed to find for defendant, if the special benefits to plaintiff’s lots, by reason of the grading, equaled or exceeded the damages thereto, and that the measure of such damages, if any, was the difference between the market value of the real estate immediately before and after .the grading. An examination of all the evidence in connection with the entire charge leads to the conclusion that the error was not prejudicial.

5. A number of rulings, excluding testimony, are also assa'iled; but they have all been examined without finding a reversible error.

The evidence is sufficient to sustain the verdict, and the judgment is

Affirmed.