Dodds v. Town of West Liberty

• Decision Date: 27 September 1938
• Docket Number: 44321.
• Parties: DODDS v. TOWN OF WEST LIBERTY.
• Court: Iowa Supreme Court

281 N.W. 476

225 Iowa 506

DODDS v. TOWN OF WEST LIBERTY.

No. 44321.

Supreme Court of Iowa.

September 27, 1938

Appeal from District Court, Muscatine County; John E. Purcell Judge.

Action for damages alleged to have been sustained by plaintiff while riding in an automobile as it crossed the intersection of East Third and Columbus Streets in the town of West Liberty Iowa, on June 23, 1935. At the close of the evidence defendant filed a motion for a directed verdict which the court sustained. Thereafter plaintiff filed a motion for a new trial which the court overruled. Plaintiff appeals from both rulings of the court. The facts are stated in the opinion.

Affirmed.

E. R Tipton and R. G. Tipton, both of Muscatine, Dan C. Dutcher, of Iowa City, and William Ritchie, of Omaha, Neb., for appellant.

C. J. Lynch, of Cedar Rapids, and Robert Brooke, of West Liberty, for appellee.

KINTZINGER, Justice.

On or about June 23, 1935, plaintiff was riding in an automobile being driven south on Columbus Street, also known as U.S. Highway No. 6 in West Liberty, Iowa. The occupants of the car were traveling through West Liberty on highway No. 6 on their way to Davenport, Iowa.

U. S. Highway No. 6 runs generally east and west through the town of West Liberty, but from Tenth Street to East Third Street it runs north and south. At the intersection of East Third and Columbus Streets, No. 6 turns east, and Columbus Street, after crossing East Third Street, continues south where it is also known as primary No. 76. There is a 25-mile speed limit sign several blocks north of East Third Street on Columbus Street, and there are also traffic signs along the right hand side of the highway approaching East Third Street, showing that highway No. 6 makes a turn to the left, and that it is a junction with primary No. 76. There is also another sign at the southeast corner of the intersection of East Third and Columbus Streets, visible to a traveler approaching from the north, showing that No. 6 turns to the east, including an arrow sign showing a left turn on No. 6 and the distance to Davenport.

From the time Columbus Street was improved until 1928, there was a stop sign at the northwest corner of Columbus and East Third Streets, but Columbus Street at that time was not a through highway. After highway No. 6 was re-routed over Columbus Street, that street became highway No. 6 to East Third Street, and the stop sign on the northwest corner of Columbus and East Third Streets was removed by the city at the request of the highway commission.

Although it was the intention of the driver of the automobile to follow highway No. 6, he failed to turn at the intersection of East Third and Columbus Streets but continued across East Third Street into primary No. 76, without reducing the speed of his car. There is evidence tending to show that the car was being driven at 20 to 25 miles an hour.

The record shows that there are two drainage depressions or gutters on East Third Street crossing Columbus Street; one of which is on the north, and one on the south side of East Third Street. The full width of East Third Street at the intersection is 80 feet, and it is within this space that the depressions on East Third Street were constructed. There is a gradual slope to the bottom of these gutters from each side, the depth of the north gutter being 3 1/2 inches from the high point of the surface of the grade on each side, and the depth of the south gutter being about 5 inches from the high point of the surface of the street grade on each side; the distance between the bottom of both gutters being about 30 feet, and the distance from the high point of the street north of the gutters to the high point of the street south of the gutters being about 80 feet, the slope into and out of the gutters being gradual.

Appellant alleges that as the automobile crossed the two drainage gutters referred to they caused two distinct jolts to the car, causing plaintiff to be thrown up and off the rear seat causing him severe injuries. Plaintiff was removed to a hospital at Iowa City, from whence he was later taken to his home in Omaha.

In its answer defendant pleads a general denial; and as a separate defense alleges that East Third Street was governmentally planned and maintained and that, prior to the improvement of said street including the gutters about twenty years prior thereto, the defendant town employed a skilled and competent engineer to prepare plans and specifications for said improvement; that said engineer prepared plans and specifications therefor and the same were submitted to and approved and adopted by the council of the defendant town; thereafter a contract was let and the pavement, including the gutters, was constructed in accordance with said plans and specifications under the supervision of said engineer; that ever since said improvement was originally constructed in 1915 it has been maintained in the same condition in which it was originally constructed.

Appellee alleges that it is not liable for injuries received resulting from the adoption by the town of the plans and specifications for the construction of said improvement; that the exercise of judgment and discretion in the adoption of the plans and specifications for such improvement was a governmental function and that the town is not liable for any injury resulting therefrom.

At the close of the evidence defendant moved for a directed verdict upon numerous grounds, all of which may be included in the following:

1. That East Third Street, including the gutters referred to, was constructed according to plans and specifications prepared by a competent engineer and approved by the town council, and that the town's action in letting the contract and building said street in accordance with such plans and specifications was a governmental function for which it is not liable.

2. That the dips or gutters across Columbus Street on East Third Street did not constitute negligence on the part of the town.

3. That the town was not negligent in failing to place a stop sign or warning signal at the intersection in question.

4. That the plaintiff was guilty of contributory negligence.

The court sustained defendant's motion for a directed verdict generally. Plaintiff filed a motion for a new trial, which motion was overruled generally. From these rulings plaintiff appeals.

I.

Appellant contends that if the drainage gutters or depressions across East Third Street were constructed in a faulty manner so as to cause injury to persons traveling over the same while in the exercise of ordinary care, the question of defendant's negligence in maintaining the street in that condition was for the jury, and that the court erred in holding appellee was not liable because it had the plans and specifications for the improvement prepared by a competent and qualified engineer.

The record shows that the plans and specifications for the improvement of East Third Street were prepared by Benton R. Anderson, a competent civil engineer; that such plans and specifications were adopted by the town council and the improvement was constructed in accordance therewith in 1915. The record also shows that prior to the preparation and adoption of said plans and specifications the town investigated the qualifications of said Anderson as a civil engineer with reference to his employment to have charge of installing the improvement; that a committee from the town council went to the city of Marion where they interviewed said Anderson, investigated his qualifications, and inspected a paving project he was then in charge of in that city. This committee reported favorably on his qualifications to the town council and he was then employed by the town for the purpose of planning the construction of paving in the town of West Liberty, including East Third at its intersection with Columbus Street. The necessary resolution of necessity for the improvement of said street was duly adopted by the council prior to the construction of the improvement.

The record also shows that the plans and specifications for paving, curbing, and guttering the street in question, as prepared by the engineer, were approved by the town council on May 12, 1915; that the town council adopted a resolution ordering the improvement constructed in accordance with such plans and specifications; and that the improvement was constructed in substantial compliance therewith. The record also shows that the contour of the street improvement and drainage gutters as they existed at the time of the trial was in substantially the same condition as shown by the original plans and specifications.

Appellant contends that the intersection of Columbus Street and East Third Street was not reasonably safe for automobile traffic thereon because of the gutters therein, and that the construction and maintenance of said gutters constituted negligence for which the town is liable for injuries sustained by appellant herein.

Appellee contends, however, that the street in question, including the gutters therein, was constructed according to the plans and specifications of a competent engineer, and that if the defendant town erred in adopting the plans of a competent engineer no liability attached to the town, because the adoption of such plans was a discretionary and ministerial act of the town constituting a governmental function.

The engineer who prepared the plans was a witness at the trial and testified that the contour lines of the drainage gutters were then in the same condition as when the street was paved in 1915. He said:

" The depressions which were referred to here as gutters, running east and west through the intersection across Columbus Street in East Third Street were so

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