Com. Dept. of Highways v. Begley

• Decision Date: 28 February 1964
• Citation: 376 S.W.2d 295
• Parties: COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Edith BEGLEY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 295

376 S.W.2d 295

COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Edith BEGLEY, Appellee.

Court of Appeals of Kentucky.

Feb. 28, 1964.

John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, John J. Blackburn, Covington, for appellant.

Brock & Brock, Daniel N. Brock, Lexington, for appellee.

WILLIAMS, Judge.

This is an appeal from a judgment of the Lee Circuit Court which (1) affirmed an award of the Board of Claims for damages sustained by appellee Begley as a result of the alleged joint negligence of the Commonwealth in maintaining a bridge near Beattyville, and (2) reversed a ruling of the Board crediting against the Board's award the partial payment by a co-tort-feasor of a separate judgment for the same harm.

On October 11, 1958, at about 9 o'clock a. m., the appellee, Edith Begley, and her son were passengers in an empty pickup truck operated by her husband who was driving south toward Beattyville over the North Fork Bridge. Approaching from the opposite direction was a truck loaded with approximately 800 concrete blocks and weighing 18 tons or more. The North Fork Bridge consisted of three spans--the main span over the river, and a 'pony' span at each end. The 'pony' span at the north end of the bridge and the main span were level; the 'pony' span nearest Beattyville slanted 45 degrees upgrade from the bank to the main span. Because of this angle, motorists at either end of the bridge could not view the other end or ascertain approaching traffic until nearing the point where the angled 'pony' span joined the main span. At that point, the two trucks met, stopped, and, as they began to pass, the angled 'pony' span collapsed. Both trucks fell 50 feet to the bank below. The driver of the overloaded truck was killed. The appellee was severely and permanently injured.

The North Fork Bridge was a two-lane bridge built in 1906 of steel trusses and wood flooring and maintained by the Commonwealth. Signs posted at each end of the bridge read: 'Load Limit 6 Tons.'

The assistant director of maintenance in charge of bridges for the Highway Department testified that he had visually inspected the bridge both in January and in the summer of 1958 before its collapse. He considered the bridge safe for a gross capacity of 6 tons, but admitted that continued overstress of the bridge by loads exceeding 6 tons could render it unsafe even for smaller loads.

The evidence disclosed that the bridge was being used by trucks carrying heavy oil equipment, concrete blocks, coal, logs, bulldozers, and other heavy loads exceeding the posted load limit. During the summer of 1958, a delegation from Lee County, including the County Judge and other officials, visited the Commissioner of Highways and complained about the unsafe condition of the bridge and the heavily loaded traffic crossing it.

Appellee first sued Claude Compton, the owner of the truck overloaded with concrete blocks, and obtained a judgment of $66,000, of which $12,500 has been paid.

In a later action before the Board of Claims, pursuant to KRS 44.070 et seq., appellee sued the Commonwealth for negligently failing to maintain the bridge in a reasonably safe condition. The Board found the Commonwealth jointly negligent with Compton, awarded appellee $10,000, and credited against the $10,000 award the $12,500 paid by Compton, thereby preventing any recovery against the Commonwealth. On appeal to the Lee Circuit Court, the joint negligence of the appellant was affirmed but the credit of damages was reversed, permitting recovery of the $10,000 award from the Commonwealth.

The Commonwealth contends (1) that it was not negligent or (2) if so, that the $12,500 paid by Compton must be credited against the $10,000 award by the Board of Claims.

In general, negligence is conduct involving an unreasonable risk of harm to others. It includes a failure to act where, under the circumstances, a reasonable man would do so. Restatement, Torts, sections 284, 289 (1934). To determine whether conduct creates such an unreasonable risk of harm as to be negligent, the likelihood and gravity of possible injury to others must be weighed against the utility of such conduct. Harper & James, Torts, vol. 2, section 16.9, p. 928, et seq., (1956); Prosser, Torts, section 30, p. 119, et seq., (2 ed. 1955).

With respect to defective or hazardous conditions of the highways (which include bridges), the duty of the Commonwealth, as well as private corporations and municipalities, is to exercise ordinary care to keep the highways under its charge in a reasonably safe condition for public travel. Shrader v. Commonwealth, 309 Ky. 553, 218 S.W.2d 406 (1949); Commonwealth v. Dever, 284 Ky. 150, 143 S.W.2d 1065 (1940); Louisville & Nashville R. Co. v. Muncey, 229 Ky. 538, 17 S.W.2d 422 (1928); Town of Paintsville v. Commonwealth, 21 Ky.Law Rep. 1634, 55 S.W. 915 (1900). Of course, the Commonwealth is not an insurer of the traveling public. Commonwealth Dept. of Highways v. General & Excess Ins. Co., Ky., 355 S.W.2d 695 (1962); Commonwealth Dept. of Highways v. Young, Ky., 354 S.W.2d 23 (1962). But the liability for hazardous conditions of the highways does include situations where the danger is brought about by third persons if the agency responsible for maintaining the highway or street has actual or constructive knowledge of the unsafe conditions. Criswell v. City of Jackson, 257 Ky. 222, 77 S.W.2d 622 (1935); City of Pineville v. Lawson, 225 Ky. 542, 9 S.W.2d 517 (1928).

Under the facts of this case, the Commonwealth exerted little if any care. It took no action to remedy, warn or guard against the hazardous situation which had resulted from a combination of known violations of the posted load limit and an obstruction of view across the two-lane bridge from either end. The traveling public was prevented from discovering approaching traffic until part of the bridge had been traversed. The probability that a vehicle driven with due care within the load limit would meet an approaching vehicle...