Cass County v. Sarpy County

134 N.W. 270, 90 Neb. 709, 1912 Neb. LEXIS 130

• Court: Nebraska Supreme Court
• Decided: January 24, 1912
• Docket: No. 16,842
• Status: Published

Opinions

Fawcett, J.

This case is before us for the fifth time. The history of the case and of the matters in controversy will be found in our former opinions reported in 63 Neb. 813, 66 Neb. 473 and 476, and 72 Neb. 93. The last trial was held at the February, 1910, term of the district court for Sarpy county. There was a trial to the court and a jury and a verdict for defendant. Judgment on the verdict. Plaintiff appeals.

The only contention made here is that the verdict is not sustained by the evidence. In his brief counsel for plaintiff states that it is only necessary to discuss the following questions: “(1) Whether or not at time of making the repairs by plaintiff, in 1900, on the bridge in question, the same was a public wagon bridge and formed and was used as a part of the public highway. (4) The reasonable value of the repairs so made necessary to put said bridge in safe condition for public travel. (7) The issue was also raised by the pleadings as to whether or not said bridge was actually repaired, or whether it was not a new construction so as to render defendant not liable.”

Under the rule announced by this court in American Fire Ins. Co. v. Landfare, 56 Neb. 482, Farmers Bank v. Garrow, 63 Neb. 64, and Missouri P. R. Co. v. Hemingway, 63 Neb. 610, plaintiff is not in a position to urge the insufficiency of the evidence to sustain the verdict on point 1. At the conclusion of the trial plaintiff, without any motion for a directed verdict or objection of any kind that the evidence was insufficient to warrant a verdict in favor of defendant, requested, and the court gave, instructions 3 and 4, covering the question involved in point 1. The verdict having been adverse to plaintiff, it cannot now be heard to assert that there was not sufficient evidence upon that point.

Point 4 need not be considered, for the reason that, the verdict having been for defendant, the question of the reasonable value of the repairs is immaterial for the purpose of this review.

The rule above announced, and held to be applicable to point 1, has no application to point 7, for the reason that no instructions upon that point were requested by plaintiff. As no special findings were submitted to and returned by the jury, it is impossible to say upon which of these two points the verdict of the jury was based. If upon point 7, we think the contention of plaintiff, that the verdict, was not sustained by the evidence, is sound. The evidence in this record, that the bridge was not a new bridge but was simply an old bridge repaired, is much stronger than in Brown County v. Keya Paha County, 88 Neb. 117, where the same contention was made as here, but where we held that plaintiff’s claim was for repairs; and upon the record before us we must hold the same here. According to the testimony, there never was a day when this bridge was not used. It even shows that at the very time they were making the repairs teams were crossing. One witness testified that, "during the time we were repairing it, we let no teams go across there only at 12 o’clock, at noon, and after 6 o’clock, just one day the teams that were waiting there amounted to about 80 teams.” The evidence shows that the length of the bridge was about 2,800 feet; that there were in round numbers 508 piling, 889 stringers and 127 caps used in its original construction. In making the repairs, only 11 new piling, 551 stringers and 49 caps were used. That the floor was all new, that no one section of the bridge was left standing complete and without repairs, and that the piling left, in the bridge was old piling which had been there for a number of years does not change the character of the work done. It would be useless to quote the testimony at large upon this point. Viewed from any standpoint, it is entirely insufficient to sustain the contention that this was a new structure, and' upon point 7 the verdict is without sufficient eAddence to sustain it. Being unable, as above indicated, to determine upon what theory the jury returned their verdict, it should not, in the face of the apparent merit of plaintiff’s claim, be permitted to stand. That this bridge was a part of a highway, which the public generally, in both the plaintiff and defendant counties, used and had used for nearly ten years is beyond question. That there may be some slight question as to whether the lands in the approaches to the bridge had been dedicated to public use by the OAvners, or legally condemned and opened as a public road, should not weigh against the more important fact that the bridge has been used as a part of the public highway for so many years.

The question as to the right of plaintiff to a change of venue is not properly presented by this record. If it were, we might be constrained to hold that plaintiff is entitled to have the venue changed, and the case submitted to a jury free from any local interest or prejudice. The verdict of the jury indicates the propriety of such a course.

The judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed;