Hansmann v. Gosper County, 43168

• Decision Date: 09 January 1981
• Docket Number: No. 43168,43168
• Citation: 207 Neb. 659,300 N.W.2d 807
• Court: Nebraska Supreme Court
• Parties: Walter F. HANSMANN, Jr., Appellee, v. COUNTY OF GOSPER, Nebraska, Appellant, and Zurich-American Insurance Companies, a corporation, Appellee.

Page 807

300 N.W.2d 807

207 Neb. 659

Walter F. HANSMANN, Jr., Appellee, v. COUNTY OF GOSPER, Nebraska, Appellant and Zurich-American Insurance Companies, a corporation, Appellee.

No. 43168.

Supreme Court of Nebraska.

Jan. 9, 1981.

Syllabus by the Court

1. Counties: Highways: Bridges. It is the duty of a county to use reasonable and ordinary care in the construction, maintenance, and repair of its highways and bridges so that they will be reasonably safe for the traveler using them while he is in the exercise of reasonable and ordinary care and prudence.

2. Counties: Bridges: Damages: Liability. Under Neb.Rev.Stat. § 23-2410 (Reissue 1977), a county is liable for damages caused by insufficiency or want of repair of a county bridge.

3. Counties: Bridges. A county is required to maintain bridges that are sufficient for the proper accommodation of the public at large in the various occupations which from time to time may be pursued in the locality where the bridge is situated.

4. Bridges: Presumptions. A person using a bridge has a right to assume that the bridge is sufficient in the absence of knowledge that it is unsafe.

5. Counties: Bridges. The county is not required to have actual notice of defects in a bridge. It is sufficient if the defect existed for such a length of time that by the exercise of ordinary diligence, the defect would have been discovered and repaired.

6. Bridges: Negligence. A failure to post a load limit on a bridge may be negligence or evidence of negligence.

Murphy, Pederson, Piccolo & Anderson, North Platte, for appellant.

Conway & Connolly, Hastings, for appellee Hansmann.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

BOSLAUGH, Justice.

The plaintiff, Walter F. Hansmann, Jr., was injured while driving a truck across a bridge across Deer Creek on a county road in Gosper County, Nebraska, when the bridge collapsed. This action was brought against the county to recover damages for the injuries the plaintiff sustained in the accident.

The bridge which collapsed was a steel-pipe truss bridge, 50 feet long, and approximately 18 feet wide. It was located on a well-traveled gravel road.

The plaintiff was driving a 1974 Ford straight truck with dual rear axles. The truck was approximately 28 feet long and had a 20-foot box. The truck itself weighed between 11 and 12 tons and it was loaded with 12 tons of hog feed.

The plaintiff was almost across the bridge when the bridge started to fall. The truck slid backward and fell to the bottom of the ravine with the wreckage of the bridge.

The petition alleged that the defendant had allowed the bridge to become weak and unsafe for normal use by a lack of sufficient repair and maintenance, and that the carrying capacity or weight which the bridge would safely carry was not posted on the bridge as required by statute.

The trial court found that a 10-ton-limit sign was posted on the bridge in the fall of 1974, but the sign was not on the bridge in January and February of 1975 and was not on the bridge on June 24, 1975, at the time of the accident; the sign had been off of the bridge for a sufficient period of time that it ought to have been replaced; and the failure to replace the sign was an insufficiency or want of repair of the bridge which rendered the defendant liable to the plaintiff. The plaintiff was awarded judgment in the sum of $8,500, and the cross-petition of the defendant for the cost of replacing the bridge was dismissed. The defendant has appealed.

The principal issue on the appeal is whether the county was liable to the plaintiff because it failed to have the load limit posted on the bridge at the time of the accident.

It is the duty of a county to use reasonable and ordinary care in the construction, maintenance, and repair of its highways and bridges so that they will be reasonably safe for the traveler using them while he is in the exercise of reasonable and ordinary care and prudence. Olson v. County of Wayne, 157 Neb. 213, 59 N.W.2d 400 (1953).

Under Neb.Rev.Stat. § 23-2410 (Reissue 1977), a county is liable for damages caused by insufficiency or want of repair of a county bridge. We have held that a county is required to maintain bridges that are sufficient for the proper accommodation of the public at large in the various occupations which from time to time may be pursued in the locality where the bridge is situated. Kovarik v. Saline County, 86 Neb. 440, 125 N.W. 1082 (1910); Miles v. Richardson County, 100 Neb. 294, 159 N.W. 411 (1916). A person using a bridge has a right to assume that the bridge is sufficient in the absence of knowledge that it is unsafe. City of Central City v. Marquis, 75 Neb. 233, 106 N.W. 221 (1905).

Neb.Rev.Stat. § 39-1411 (Reissue 1978) provides that the county highway superintendent "shall cause to be firmly posted or attached upon each bridge in a conspicuous place at each end thereof a board or metal sign showing the carrying capacity or weight which the bridge will safely convey or bear." The evidence in this case was clearly sufficient to support the finding of the trial court that a 10-ton-limit sign was posted on the bridge in the fall of 1974 but had not been on the bridge for...