
    Lydia A. Tewksbury, appellee, v. City of Lincoln, appellant.
    Filed June 11, 1909.
    No. 15,733.
    1. Cities: Defective Sidewalks: Liability. The. making, improving, repairing, keeping in repair and in a safe condition, of streets and sidewalks by a municipal corporation relate to its corporate interests only, and it is liable for. the wrongful or negligent acts of its agents in performing such duties. Burke v. City of South Omaha, 79 Neb. 793.
    2. -: -: Injury: Notice. Where a sidewalk is rendered temporarily dangerous by the positive negligent act of a city of the first class, and a person in passing over it, immediately or within less than 5 days thereafter, and in the absence of contributory negligence, receives a personal injury, the provisions of section 110 of the charter (Comp. St. 1907, ch. 13, art. I), requiring five days’ notice of the dangerous condition of the walk to be given the city before the accident, cannot be applied, and the city will be held liable for damages sustained by the person injured.
    3. --: - — : -: Contributory Negligence. Evidence examined and it is not found as a matter of law that plaintiff was guilty of contributory negligence.
    4. Appeal: Affirmance. There being no specific objections offered to instructions given, nor to the refusal of the trial court to give an instruction asked, and upon an examination of the whole record it appearing that the case was fairly submitted to the jury, and no prejudicial error is found to have been committed, the judgment of the district court will be affirmed.
    Appeal from the district court, for Lancaster county: Albert J. Cornish, Judge.
    
      Affirmed.
    
    
      John M. Stewart and T. F. A. Williams, for appellant.
    
      Halleck F. Rose and Wilmer B. Comstock, contra.
    
   Reese, O. J.

This was an action against the city of Lincoln for personal injuries resulting from a fall upon the sidewalk crossing occasioned by the accumulation of ice caused by the leaking of water from the hydrant and hose in use in flushing a sewer. There is scarcely any dispute as to the facts, either as to the condition of the crossing caused by defendant, or the injury resulting from the fall. On Saturday, the 8th day of December, 1906, a sewer drain became clogged or dammed, and a hose was attached to a hydrant on the corner of Twelfth and O streets, and the water was carried through it to the opening in the sewer for the purpose of flushing said sewer. At the point of the union of the hose with the hydrant there was a leak, and the water was driven out upon the sidewalk and upon the bridge connecting the sidewalk with the street crossing, the bridge having a descent from the sidewalk to the street crossing of about three inches in two or three feet. During the night the water thus thrown upon the sidewalk and bridge froze, forming a thin, smooth coating of ice. On the afternoon of Sunday, > the 9th, while the men were still at work, plaintiff with another lady was passing over the sidewalk and bridge on their way to church, when plaintiff stepped upon the ice, fell and broke her arm near the wrist, probably permanently injuring the arm. The negligence charged against the city was that of causing the dangerous condition which it is claimed might have been avoided by the exercise of ordinary care. It appears that during Saturday night the officers and employees of the city, observing the flow of water upon the sidewalk and bridge, caused a cloth to be wrapped upon, the part where the water escaped, to prevent it from being thrown upon the walk and bridge, but no precaution was taken to prevent accidents to persons passing over the freezing water, and the testimony on the part of plaintiff is that the spraying and freezing continued on Sunday. On that day it was quite cold, and there was ice upon that part of the bridge over which plaintiff passed, which was not noticed by her, and she fell, inflicting the injury. The sidewalks and streets elseAvhere were dry. Damages were laid in the petition at $5,000. A trial was had which resulted in a verdict in favor of plaintiff for $550, upon which judgment was rendered. Defendant appeals. There is no contention that the judgment is for too great an amount, assuming that defendant is liable at all, but it is contended, first, that under section 110 of the city charter there is no liability, and, second, that the city cannot be held responsible, in any event, for the negligent acts of its officers and employees.

The section of the charter above referred to is as follows: “Cities of the first class shall be absolutely exempt from liability for damages or injuries suffered or sustained by reason of defective public ways or the sidewalks thereof within such cities, unless actual notice in writing of the defect of such public way or sidewalk shall have been filed with the city clerk at least five days before the occurrence of such injury or damage. In the absence of such notice, so filed, the city shall not be liable and in all cases such notice shall describe with particularity the*place and nature of the defects of which complaint is made.” Comp. St. 1907, ch. 13, art. I, sec. 110. It is contended by defendant that, in the absence of a compliance with this section, no action can be maintained, and that the court erred in refusing to direct the jury to return a verdict in' favor of defendant; that, if defendant is “absolutely exempt” from liability for damages by reason of defective sidewalks unless actual notice thereof be given in writing five days before tine occurrence of the accident, the court should have so directed the jury. As no notice was given, and, confessedly, none could have been given five days before the accident, it is claimed that defendant is not liable. Upon the other hand, it is contended by plaintiff, and we think,with the better reason, that defendant cannot shield itself from liability for a negligent act of which it is of itself guilty and which is immediately followed by the injury; that the statute does not contemplate exemption from such negligent act; and, further, that all the knowledge that could possibly result from the giving of the notice, were it possible to give it, was already possessed by the city officers.

We have not been cited to any adjudications under an exactly similar statute, but think many of the cases cited by plaintiff are in point, on principle, and that their logic must be applied to this cgse. The line of demarcation between plaintiff and defendant appears to be the distinction between cases which involve the governmental function of municipal corporations and those of corporate duties and obligations of a semiprivate character imposed by law. It has been repeatedly held by this court that it is the duty of cities to keep and maintain its streets and sideAvalks in repair and safe for public use. City of Lincoln v. Walker, 18 Neb. 244; City of Omaha v. Jensen, 35 Neb. 68; Davis v. City of Omaha, 47 Neb. 836; and others Avhich need not be here cited.

The case of Gillespie v. City of Lincoln, 35 Neb. 34, Avas where the plaintiff in the action Avas struck and' injured by a wagon of the fire department, and the city Avas held not liable on the ground that the duties otythat department were not municipal or corporate duties with Avhich the corporation is charged in consideration of charter privileges, but are police or governmental functions Avhich could be discharged equally well through agents appointed by the state, though usually associated Avith and appointed by the municipal body. But we said, on page 45: “The cases cited by plaintiff may be said to sustain the proposition that the law imposes upon a city the duty to keep its streets in a reasonably safe condition for use by the public, and for a neglect of that duty it will be answerable. They are plainly distinguishable from those to which we have referred, since the duty of the city with reference to its streets is a corporate duty. As said by Judge Eolger in Maxmilian v. Mayor, 62 N. Y. 160: ‘It is a duty with Avhich the city is charged for its corporate benefit to be performed by its oato agents as its OAvn corporate act.’ This distinction is made also in Ehrgott v. Mayor, 96 N. Y. 264, one of the cases cited by plaintiff. To the extent that the exemption of a city from liability for acts of officers herein enumerated affects the general rule of liability for obstruction of the streets of the city it must be held to be an exception thereto — an exception based upon a public policy which subordinates mere private interests to the welfare of the general public.”

Burke v. City of South Omaha, 79 Neb. 793, did not involve the exact question presented in this case, but the distinction between the two classes of cases is clearly pointed out and discussed, and a mere reference to it must be sufficient. We quoted with approval the following from a note to McMahon v. City of Dubuque, 70 Am. St. Rep. 143 (107 Ia. 62), “Municipal corporations, acting within the purview of their authority, and in their ministerial or- corporate character, in the management of property for their own benefit, or in the exercise of powers, assumed voluntarily for their own advantage, are impliedly liable for damage caused by the negligence of their officers and agents, though they may be engaged in some work that will inure to the general benefit of the municipality. Grading streets, cleansing sewers, or keeping wharves in safe condition, from which a profit is derived, are duties of this character.” See, also, Shinnick v. City of Marshalltown, 137 Ia. 72; Hitchins Bros. v. Mayor, 68 Md. 100; Esberg Cigar Co. v. City of Portland 34 Or. 282; Carson v. City of Genesee, 9 Idaho, 244. Further discussion would seem to be unnecessary.

Is the five days’ notice required in the section above quoted necessary? In other words, can the provisions of the section be applied to cases of this kind? We think not. To hold that five days’ notice should be given for a wrong committed by the city itself one hour, or one day, before the occurrence of the accident, and of which the city already has absolute knowledge, would be in the highest degree ludicrous and attribute to the lawmaker a want of foresight, insight and comprehension which we cannot do. It is true that the statute provides that the city shall be “absolutely exempt from liability” unless such notice be given, but we must give a reasonable construetion to the language of the act. The law never requires an impossible thing. The section presupposes that the defect in the public way must have existed at least five days, otherwise the notice would be impossible. But, even if the notice should be held necessary where the defect is caused by the elements, or the unauthorized act of third parties, it could not with any degree of reason be said that it could be required where the danger was created by the negligent act of the city itself. Suppose a deep water or sewer-way trench was excavated across the street just before dark, and no lights or other signals of danger were placed to warn those using the street of its condition, and a person in passing over the street in the dark night, two hours later, with no knowledge of what had been done, should receive an injury by driving or falling into the opening, could one say, that the legislature had in mind such a circumstance and require the five days’ notice of the condition of the street? We think not. In City of Lincoln v. Calvert, 39 Neb. 305, it is said in the syllabus: “While a city is liable only for injuries resulting from defects brought to its notice or existing under such circumstances that ignorance of the defect amounts in itself to negligence, still, when the defect is caused by the direct' act, order, or authority of the city, notice is necessarily implied.” In City of Omaha v. Jensen, 35 Neb. 68, we said (quoting from the syllabus) : “Where a city causes an excavation to be made in a public street, it cannot plead want of notice of the failure to erect barriers to prevent accidents by falling into the excavation. It- is its duty to see that such barriers are erected and kept up.” In the body of the opinion it is said: “It is claimed that 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.” See, also, Adams v. City of Oshkosh, 71 Wis. 49; City of Springfield v. Le Claire, 49 Ill, 476; Barton v. City of Syracuse, 36 N. Y. 54; City of Houston v. Isaacks, 68 Tex. 116, S S. W. 693; Still v. City of Houston, 27 Tex. Civ. App. 447, 66 S. W. 76; 28 Cyc. 1389, note 9.

It is suggested that plaintiff was guilty of contributory negligence in stepping on the icy sidewalk and bridge. We find nothing in the evidence by which we can say as a matter of law that plaintiff was guilty of contributory negligence. That question was submitted to the jury under proper instructions, and their finding will have to stand.

Complaint is made of two instructions given and one asked by defendant and refused. They are too long to be here copied, nor is it necessary to do so, as .there is no specific criticism, and the instructions given fairly covered the whole case, as well as the one refused, and we find no error in them.

The judgment of the district court is

Affirmed.  