Ehlinger v. State

• Decision Date: 21 January 1976
• Docket Number: No. 2--56965,2--56965
• Parties: Carl Francis EHLINGER, Appellee, Cross-Appellant, v. STATE of Iowa, Appellant, Cross-Appellee.
• Court: Iowa Supreme Court

Page 784

237 N.W.2d 784

Carl Francis EHLINGER, Appellee, Cross-Appellant, v. STATE of Iowa, Appellant, Cross-Appellee.

No. 2--56965.

Supreme Court of Iowa.

Jan. 21, 1976.

Richard C. Turner, Atty. Gen., John E. Beamer, Sp. Asst. Atty. Gen., and Larry M. Blumberg, Asst. Atty. Gen., for appellant, cross-appellee.

David Hughes, Cascade, and William C. Fuerste, Fuerste, Carew & Coyle, Dubuque, for appellee, cross-appellant.

Heard by MOORE, C.J., and RAWLINGS, REES, UHLENHOPP, and REYNOLDSON, JJ.

REYNOLDSON, Justice.

The State, appealing from a tort-claim judgment awarding plaintiff $638,000 for personal injuries, raises issues relating to negligence, contributory negligence and proximate cause. Plaintiff cross-appeals, asserting the award was inadequate and demanding the case be remanded to district court for additur. We affirm on both appeals.

About noon on Saturday, June 7, 1969, the day after his high school graduation, plaintiff was picked up at his Cascade home by a friend, Patrick Howard. The afternoon was filled with a variety of activities which have no apparent relevancy to this appeal.

After eating at a Cascade cafe these boys started for Dubuque at about 6:45 or 7:00 P.M. in Howard's 1966 Ford Mustang. It was then raining hard. Howard drove east on highway 151. The rain let up. About three miles from Cascade Howard observed a pond of water on the highway at the bottom of a decline. He slowed his car from approximately 60 to 45 miles per hour. Howard testified he 'hit a lot more water than I thought I was going to.' When his car hit the water he lost control, the car was pulled to the right and off the roadway. After hitting a spillway the vehicle skidded into a farmyard and struck a tractor with its passenger side, injuring plaintiff.

The condition of highway 151 at and near the accident scene is of major importance. The highway was constructed in 1929 or 1930. It was the old style paved slab with a three-inch curb on each side included within its 18 foot width. The curb was designed to carry surface water along the outer road surfaces to spillways which drained it into the grader ditches.

By 1967 the roadway was so deteriorated the highway commission reduced the speed limit from 70 to 60 miles per hour. After construction of an improved road in 1970 this segment of 151 was closed to through traffic.

The road in the area of this accident lies in a swale. In this lower area was a culvert over which the pavement had settled. Some distance east of this culvert were spillways to drain water from the pavement to the grader ditches. But west of the spillways was a 'frost heave' or 'frost boil', an elevated portion of broken pavement which extended the width of the road and served as a dam to pool water in the depressed pavement before it could reach the spillways.

The district maintenance engineer testified he knew the frost heave had existed since 1962, and the condition was never corrected. The average daily traffic count was 2230 vehicles.

Krogmann, a highway commission maintenance worker, testified the frost heave would pond water coming down the pavement from the west to a depth of four inches, the water was a traffic hazard, and although he had reported it he received no authority to correct the situation. He saw signs where cars had gone off the roadway and through the fence at this location two or three times a year for some years before this accident. The water would lay in the pool until splashed out by traffic. The effort of the maintenance crews was to make the 'heave' or bump less precipitous, not to correct the ponding problem or fill or drain the pond.

The ponding effect and occurrence of prior accidents was verified by farm owners living near the area, and persons involved in some of the mishaps.

The State's expert witness was Charles Huisman, maintenance area engineer for the highway commission. He testified on cross-examination the design of highway 151 would have contemplated that the water would be moved off the highway at let-down structures as frequently as required to keep it moving and not standing on the highway; by the end of the 1960's it was well known that extreme vigilance should be used to avoid conditions which would tend to pool water on the roadway. Huisman described the phenomenon of 'hydroplaning' in which, under certain conditions, a film of liquid will lift vehicle tires off the road surface, causing loss of control. One of the conditions or factors causing hydroplaning is the length of the 'skin' of water lying over a smooth surface. He theorized Howard's car left the pavement because 'hydroplaning probably was in effect back this way; either partially or totally, and that as they came into this pond area that you call it, that the additional resistance there or the plowing effect would have a tendency, in hydroplaning, for the vehicle to drift or veer to the right * * *.'

The Iowa state highway commission maintenance manual provided, 'If the settled pavement ponds water a temporary solution would be to cut a drainage way through the shoulder, if practical, or fill the depression with an asphalt premix. The area should then be raised with a mud jack as soon as the equipment is available.' Huisman testified in this instance a short-term corrective measure would be to level the area with an asphaltic concrete material. This could have been done quickly before June 1969 at a cost of $250 to $500. Mud-jacking, in his opinion, would not have been practical because the pavement was too disintegrated. Assuming a settlement and frost heave creating a ponding situation, the witness stated the commission manual procedure called for an employee to report it to his supervisor as soon as possible, and an investigation and corrective procedures to be taken '(a)s soon as possible, and if a correction cannot be made immediately, proper warning by flags and/or signs would be placed.' The condition should not exist with signs over more than a temporary period, '(s)ay a matter of days; 30 days; a month.'

For several years the hazard at this location had been marked by 'bump' signs topped by red warning flags, positioned to the east and west of the frost heave.

The highway patrol officer who arrived at the accident scene at 9:09 P.M. was a witness. The east edge of the water then collected on the highway was 45 feet west of the spillway. It extended to the middle of the road 'or thereabouts.' He estimated it to be four or five inches deep. There was nothing in his notes to indicate water was running out of the spillway at the time. This officer regarded the pond as a hazard to vehicles coming east. He testified without objection the accident was caused by a combination of speed and the amount of water on the highway.

Summarized, the issues presented by these appeals are 1) Was the State negligent in failing to repair the hazard? 2) Was plaintiff contributorily negligent? 3) Was the driver's negligence the sole proximate cause of the accident? 4) Was the award so inadequate it fails to do substantial justice?

I. Scope of review.

In these tort claims act cases the statute provides the district court, sitting without a jury, shall determine the facts. Section 25A.4, The Code.

Our usual rules relating to scope of review apply. The above factual recital follows the principle that the evidence is viewed in the light most favorable to the judgment, and trial court's findings are construed liberally to support the result reached. DeYarman v. State, 226 N.W.2d 26, 27 (Iowa 1975); see rule 344(f)(1), Rules of Civil Procedure. We need only consider evidence favorable to appellee whether or not it is contradicted. Meade v. Roller, 212 N.W.2d 426, 429 (Iowa 1973).

Negligence, contributory negligence and proximate cause are matters to be determined by the trier of fact and only in exceptional cases may they be settled as questions of law. Rule 344(f)(10), R.C.P.; Ruan Transport Corporation v. Jacobs, 216 N.W.2d 182, 185 (Iowa 1974).

These rules, impartially applied in tort claims act appeals, have supported judgment for the State, DeYarman v. State, supra, as well as for the claimant, Stanley v. State, 197 N.W.2d 599, 604 (Iowa 1972).

II. Issue of the State's negligence.

Trial court found the frost heave and depression pooled water, which constituted a 'chronic hazard', and no effort had been made to correct the depression. It concluded the State's employees were negligent in not filling up the ponding area with layers of asphaltic concrete or repairing the area in some other manner in accordance with the highway commission maintenance manual. It also concluded the 'posting of a sign, does not, in itself, remedy a hazard in the highway, at least insofar as the same constitutes a hazard to those persons, such as the Plaintiff, who are not charged with control of the motor vehicle or observation of highway signs.'

The State challenges this rationale, asserting it could satisfy any duty it might have by either repairing or warning, and in any event a warning was of no consequence to a passenger who had knowledge of the hazard and appreciated the risk.

It is plain the State's failure to repair highway 151 at the place of this accident violated state law, the highway commission's maintenance manual, and the commission's established procedure.

Section 313.36, The Code, 1966 provided 'Primary roads shall be maintained by the state highway commission and the cost thereof paid out of the primary road fund. * * *' As used in this context 'maintain' means 'to keep in a certain condition or position, esp. of efficiency, good repair, etc.; preserve (to Maintain roads).' Webster's New World Dictionary, p. 854. The duty of governmental bodies to 'maintain' streets or highways is ordinarily held to include the duty to repair. Clay v. City of Los Angeles, 21 Cal.App.3d 577, 585, 98 Cal.Rptr. 582, 586 (1972); Weiher v. Phillips, 103 Ohio St. 249, 254, 133 N.E. 67, 68 (1921); McClung v....