Becker v. Chapple

• Decision Date: 02 January 1925
• Docket Number: 5586.
• Citation: 232 P. 538,72 Mont. 199
• Parties: BECKER v. CHAPPLE et al.
• Court: Montana Supreme Court

232 P. 538

72 Mont. 199

BECKER v. CHAPPLE et al.

No. 5586.

Supreme Court of Montana

January 2, 1925

Rehearing Denied Jan. 19, 1925.

Appeal from District Court, Yellowstone County; Lyman H. Bennett Judge.

Action by Genevieve Becker against Lou W. Chapple and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

H. C Crippen, of Billings, for appellant.

Thad S Smith and Johnston, Coleman & Johnston, all of Billings, for respondents.

RANKIN J.

This is an action wherein the plaintiff seeks to hold the defendants, commissioners of Yellowstone county, individually liable for personal injuries sustained by her by reason of a defect in the highway.

Briefly stated, the plaintiff alleges that on August 4, 1922, a washout occurred in a public highway in Yellowstone county, leaving an excavation approximately 30 feet wide and 8 feet deep; that the defendants had knowledge, individually and as a board of commissioners, of the washout and of the dangerous condition in which it left the highway, but failed and neglected to protect the traveling public by erecting barriers, signal devices, or posting warning notices of any kind. Plaintiff further alleges that, while the automobile in which she was riding as a guest was being driven along the highway, it was precipitated into the washout, causing her serious personal injuries.

Two answers were filed, one by the defendants Chapple and Todd jointly, and the other by the defendant Phelan. The answer of the defendant Phelan alleges that upon learning, on August 3, 1922, that the washout had occurred he erected sufficient barriers to warn the traveling public of the dangerous condition of the road, and that he or Chapple instructed the road supervisor to see that the barriers were maintained.

The answer of the defendants Chapple and Todd, after denying actual or constructive notice of the defect in the highway to the commissioners as a board, alleges as an affirmative defense that they were informed by the defendant Phelan that he had placed sufficient barriers on each side of the washout; that the defendant Chapple had instructed the road supervisor to see that the barriers were maintained; and that they had no notice that they had been removed.

Both answers deny the allegations of negligence, and allege as an affirmative defense that the accident was caused by the contributory negligence of the plaintiff. The affirmative allegations of the answers were put in issue by replies.

The cause was tried to the court with a jury. At the conclusion of the testimony the defendants interposed separate motions for a directed verdict. The motions were granted, and judgment was entered in their favor. It is from this judgment that the appeal is prosecuted.

Defendants attack the sufficiency of the complaint upon three grounds: (1) That it fails to allege that notice of the washout was given to the board of commissioners; (2) that no allegation appears in it to show that proper barriers were not erected and maintained by the road supervisor; (3) that it is silent as to whether the board instructed the road supervisor to erect and maintain barriers.

1. With the contention that the allegations of the complaint as to notice are insufficient we cannot agree. The complaint alleges that "the defendants, both in their official capacity as a board of commissioners and as individuals, had actual knowledge of said washout and of the condition of the said highway."

2. The assertion that the complaint, to state a cause of action, must allege that proper barriers were not erected and maintained by the road supervisor is, in our opinion, disposed of by the allegation of the complaint that "there were no barriers or lights or any warning of any character at or near the approach to said excavation * * * on the 9th day of August, 1922, at the hour aforesaid."

3. The contention that the complaint is defective without an allegation that the commissioners did not instruct the road supervisor to erect and maintain barriers to warn the traveling public of the washout cannot be sustained. In our opinion, the commissioners are not relieved of liability by merely instructing the road supervisor to erect and maintain barriers. Section 1372 of the Revised Codes of 1907 imposed upon the road supervisor only the duty to remove any defect or obstruction in the highway forthwith, but the law was amended in 1915 (Rev. Codes 1921, § 1627) for the express purpose of imposing the same duty also upon the county commissioners. As amended, the law reads as follows: "Whenever any public highway becomes obstructed from any cause, or any bridge needs repairing or becomes dangerous for the passage of teams or travelers, the board of county commissioners, or the supervisor of the road district, if there be one, upon being notified thereof, must forthwith cause such obstruction to be removed, or bridge repaired, for which purpose" such person as "the board of county commissioners" may designate "or the road supervisor of the district may order out such number of inhabitants of the district as may be necessary to aid in removing such obstructions or repairing such bridge. * * *"

The design of the statute is to maintain the highways unobstructed and safe for the traveling public by compelling the board of commissioners, as well as the road supervisor, to remove obstructions forthwith. To accomplish its purpose the board is clothed with drastic authority. It is given power to draft, without limit, the services of the physically fit inhabitants of the district, if necessary, to remove the obstruction. Manifestly, the commissioners may not shift the responsibility of making the repairs and warning the public of danger by mere direction to the road supervisor.

Inasmuch as the amended act referred to above-which is now section 1627, Revised Codes of...