Christensen v. City of Tekamah, 41486

• Decision Date: 12 July 1978
• Docket Number: No. 41486,41486
• Parties: Shirley CHRISTENSEN, Appellee, v. CITY OF TEKAMAH, a Municipal Corporation, et al., Appellants, Impleaded with Chicago and Northwestern Transportation Company, a corporation, Appellee.
• Court: Nebraska Supreme Court

Page 93

268 N.W.2d 93

201 Neb. 344

Shirley CHRISTENSEN, Appellee, v. CITY OF TEKAMAH, a Municipal Corporation, et al., Appellants, Impleaded with Chicago and Northwestern Transportation Company, a corporation, Appellee.

No. 41486.

Supreme Court of Nebraska.

July 12, 1978.

Syllabus by the Court

1. If any person suffers personal injury or loss of life, or damage to his property by means of insufficiency or want of repair of a highway or bridge or other public thoroughfare, which a political subdivision is liable to keep in repair, the person sustaining the loss or damage, or his personal representative, may recover in an action against the political subdivision.

2. The liability of all political subdivisions based on the alleged insufficiency or want of repair of any public thoroughfare is to be determined by the provisions of sections 23-2410 and 23-2411, R.R.S.1943, and judicial interpretations governing the liability of counties under the statute in effect prior to the enactment of the Political Subdivisions Tort Claims Act.

3. A county is not an insurer, but must use reasonable and ordinary care in the construction, maintenance, and repair of its highways and bridges so that they will be reasonably safe for a traveler using them while he is in the exercise of reasonable and ordinary caution and prudence.

4. The character and extent of unevenness or other inequalities in the surface of a highway, or street, as well as the surrounding circumstances, determine whether such inequalities constitute actionable defects. The test ordinarily is whether the inequalities are of such magnitude or extent as to be likely to cause injury to travelers who are proceeding with due care. The public authority is not liable for a failure to remedy trivial irregularities, slight depressions, or other minor inequalities in the surface of the highway.

5. Holes, ruts, or depressions in the street or sidewalk may give rise to a right of action for injuries caused thereby if they are of such a nature that danger therefrom might reasonably be anticipated. Slight holes or depressions which are not in the nature of traps, and from which danger could not reasonably be anticipated, are not defects for which an action will lie.

6. In an action to recover damages from a county by virtue of the Political Subdivisions Tort Claims Act, the burden is on the plaintiff to establish negligence of the county and that its negligent act was the proximate cause of the injury to the plaintiff or that it was a cause that proximately contributed to it.

7. Expert testimony is permitted even in areas where laymen have competence to determine the facts testified to by the expert where the trial court may feel the opinion would assist them. The trier of fact is not bound by the testimony of an expert witness.

8. On appeal of an action under the Political Subdivisions Tort Claims Act, the findings of the trial court will not be disturbed unless clearly wrong.

Harry L. Welch and Harold W. Kauffman of Gross, Welch, Vinardi, Kauffman & Day, Omaha, for appellants.

Mark L. Laughlin and John D. Sykora of Marer, Venteicher, Strasheim, Seidler, Laughlin, Lazer & Murray, P. C., Omaha, for appellee Shirley Christensen.

Heard before SPENCER, BOSLAUGH and WHITE, JJ., and RIST and KELLY, LLOYD W., District Judges.

PER CURIAM.

This is an action brought by the plaintiff-appellee for damages sustained as a result of an automobile accident at a railroad crossing in Tekamah. The plaintiff was traveling east on "G" Street in Tekamah when her automobile stopped abruptly on the west edge of a railroad crossing. The lower portion of the frame or bumper of plaintiff's automobile apparently engaged itself with a rail of the Chicago and Northwestern Transportation Company, hereinafter referred to as the "Railroad." The plaintiff brought action against the Railroad alleging negligence due to the protrusion of the rail and against the City of Tekamah, hereinafter referred to as "City," alleging negligence in the design and maintenance of the street approaching the railroad crossing. Plaintiff alleged two causes of action, one for property damage and personal injury and the other for the loss of consortium.

The action was tried before a jury; however, only the case of the Railroad was submitted to the jury. The Political Subdivisions Tort Claims Act, sections 23-2401 to 23-2420, R. R. S. 1943, provides that the issues as to the City be determined by the court. The jury returned a verdict for the plaintiff against the Railroad on both causes of action in the amount of $3,633. The court entered a judgment for the plaintiff against the City on both causes of action in the amount of $7,295.25. Only the City appeals from the judgment.

"G" Street runs east and west, intersecting 14th Street which runs north and south. Between 14th Street and the street immediately east of it, 13th Street or Main Street, three sets of tracks cross "G" Street. The west rail of the westernmost set of tracks is involved in this case. These rails are elevated above the surface of "G" Street. The public works director of Tekamah and the investigating officer at the accident, witnesses for the plaintiff, testified they estimated the rail elevation was 1/2 inch above the level of the street. Stanley Bales, a consulting engineer called by the plaintiff, testified the protrusion measured 3/4 of an inch.

The distance from the center of 14th Street to the west rail of the track involved is 74 feet. An exhibit prepared by Bales, showing the gradient variance of this 74 feet of "G" Street, was received into evidence. This exhibit and the testimony of Bales show there is a 3.6 percent grade for the 10 feet from the center of 14th Street to the east curb thereof. There is a 12.11 percent grade for the next 37 feet. The slope decreases slightly for the next 10 feet to a grade of 12 percent, but then increases during the subsequent 10 feet to a grade of 13.2 percent. Seven feet from the rail in issue, where there is a 3 percent grade, the slope levels off. There are no street signs giving notice to a driver of the design of the street.

The accident occurred on October 25, 1974. The weather was clear. The plaintiff was driving a 1975 automobile and there was no evidence that the automobile was not working properly. She admitted she was not using the available seat belts. The speed limit in this area of "G" Street is 25 miles per hour. The plaintiff had never driven this automobile on "G" Street in this area. Plaintiff, who suffered a brain concussion, remembers going down the slope on "G" Street. The automobile came to rest on the tracks. The crossmember of the automobile's frame was scraped from the impact. The frame of the car was bent so that both front wheels were pushed back directly against the tire well. The railroad track which had suffered the impact was scratched about 3 or 4 feet right of the center of "G" Street by plaintiff's automobile.

Ralph Renshaw, who was driving a tractor past the second railroad track approximately 200 feet east of the accident scene and facing "G" Street, witnessed the plaintiff approaching the tracks. He testified that she was traveling 18 to 20 miles per hour and braked from the top of the hill. He thought she braked as she came into the dip and when the automobile went into the dip, "it seemed to raise up on the front end and bottomed completely out on the railroad track. * * * It appeared to me that it stopped abruptly when it bottomed out."

Bales, the consulting engineer, testified that the average American automobile using the tracks would have approximately a 10-foot wheel base. A break in grade 7 feet from the crossing would result in the rear wheels of the automobile being on a much higher level than the front wheels at the crossing. This would cause the front portion of the automobile overhanging the front wheels to point downward at the track. This is a problem when coupled with the tendency of a driver coming down a steep grade to apply the brakes. The driver brakes the automobile as he or she heads into the more level grade because the rails represent a visible rough spot. Bales testified that in his opinion, as an expert, the street was not maintained in a reasonably safe condition.

The defendant City offered no evidence to refute Bales' testimony. The City argues there was no negligence on its part, and, in the alternative, such negligence, if it existed, would be negated by the plaintiff's contributory negligence. The City asserts the plaintiff failed to have proper control of her vehicle and her failure...