Dickenson v. Cheyenne County
| Decision Date | 04 May 1945 |
| Docket Number | 31860. |
| Citation | 18 N.W.2d 559,146 Neb. 36 |
| Parties | DICKENSON v. CHEYENNE COUNTY. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A county cannot be held as an insurer of those who have occasion to use county highways.
2. A county is only required to use such care as is reasonable and ordinary in the maintenance and repair of county highways.
3. Section 39-834, R.S.1943, provides that a county is liable for the 'insufficiency' of its highway, which word 'insufficiency' may be defined as being inadequate to the need, use, or purpose of the highway.
4. In the original United States government surveys in the western states, it is provided that on certain range lines running east and west, called correction lines, the section lines coming in from the north must jog over on such east and west road to the nearest section line, continuing on south from this correction line. A county would not be required to erect a warning sign, calling attention to this well-known fact, unless a duty to do so at a particular intersection would be required by reasonable and ordinary care of its highways.
5. A motorist who drives his automobile so fast on a highway at night that he cannot stop in time to avoid a collision with an object within the area lighted by his headlights is negligent as a matter of law.
6. When the plaintiff's negligence is more than slight as compared with that of the defendant, and is clearly the proximate cause of the accident, the court should direct a verdict for the defendant and dismiss the action.
R P. Kepler, of Sidney, for appellant.
P J. Heaton, of Sidney, for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.
Plaintiff brings action to recover for personal injuries sustained by him in an automobile accident, which he alleges was caused by a defective condition of a highway maintained by the defendant, the county of Cheyenne. Judgment was entered for $2,812.50, being the amount of the verdict of the jury. The defendant appeals.
The bill of exceptions discloses the following facts: The plaintiff, twenty-one years of age and married, started about 4:00 a. m. from his home with his brother-in-law, aged 19 years, on November 13, 1941, to go out to a farm to pick corn. Plaintiff drove his 1931 Model A Ford about six miles west on U. S. Highway No. 30 to the town of Sunol, then turned directly south on a county highway, and drove down this section line approximately seven miles to an intersection at a speed of about 30 miles an hour. He drove straight ahead, although it was a deed end road, requiring him to turn either east or west, and crashed into the far side of a borrow pit, which nearly demolished his automobile and caused him such very serious personal injuries that no claim is made by the county that the verdict is excessive.
It is a fact that there was no warning sign erected by the county, and that the north-south section line which the plaintiff was traveling ended in an east-west section line, which is called in the United States government surveys a correction line, and occurs usually every 24 miles, due to the convergence of longitude, and this was also the range line. The main travel southward turned at right angles at this intersection and went nearly half a mile west on this correction line, and then turned to the south again. All of these roads were maintained as graveled county highways, 24 feet wide.
On this particular winter morning, at about 4:30 a. m., it was not only very dark, but in addition there was a rather heavy fog, which wet the headlights and cut down the visibility.
As one approaches the place of this accident from the north, he comes down a gentle slope, which is 30 feet lower at the intersection than it was 1,300 feet back. The contour of the ground continues to decline at this same gentle slope over in the field beyond this dead end. In building this east and west road, the county had made a borrow pit, also used as a drainage ditch, on the south side of this east-west road, which ditch was about nine feet wide and three feet deep on the farther side. The plaintiff, driving directly ahead down that slope at 30 to 35 miles a hour, did not slacken his speed, and crashed into the south side of this borrow pit, which stopped the car.
The plaintiff claimed he never saw the intersection until he was right on it. His brother-in-law said he noticed it when they were back about 50 to 75 feet, but did not say anything to the driver of the car. Yet the testimony is that plaintiff, either consciously or unconsciously, put on the brakes, for the skid marks showed plainly 60 to 70 feet back of the car.
The defendant county sets out some twelve assignments of error, eight of them relating to alleged errors in the instructions, which need not be discussed in this opinion.
The second assignment charged that the court erred in not sustaining defendant's motion to dismiss plaintiff's action at the close of the plaintiff's evidence. This we will discuss at some length.
A county cannot be held as an insurer of those who have occasion to use county highways. A county is only required to use such care as is reasonable and ordinary in its maintenance of its highways. Brooks v. Thayer County, 126 Neb. 610, 254 N.W. 413; Frickel v. Lancaster County, 115 Neb. 506, 213 N.W. 826.
The only liability of a county for the care of its highways is that provided in section 39-384, R.S.1943, reading in part as follows: 'If special damage happens to any person, his team, carriage or other property by means of insufficiency or want of repair of a highway or bridge, which the county or counties are liable to keep in repair, the person sustaining the damage may recover in an action against the county, * * *; Provided, however, such action is commenced within thirty days of the time of the injury or damage occurring; * * *.'
There appears to be no question but that the graveled county highways in question were kept in repair by a maintainer man going over them twice a week regularly, and more often if necessary.
In addition to the repair of the highways, the only other provision in this statutory limitation placed upon recovery of damages against a county is in the clause providing that if any special damage happens to any person 'by means of insufficiency' of the highway. This important word 'insufficiency,' as used in this section, may be defined as being inadequate to the need, use, or purpose of the highway. The plaintiff charges that it was insufficient by reason of not having some kind of warning signs...
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