Hartford Fire Ins. Co. of Hartford, Conn. v. Red Willow County

Decision Date05 December 1947
Docket Number32265.
Citation30 N.W.2d 51,149 Neb. 10
PartiesHARTFORD FIRE INS. CO. OF HARTFORD, CONN., v. RED WILLOW COUNTY.
CourtNebraska Supreme Court

Syllabus by the Court.

1. Contributory negligence, in its legal signification, is such an act or omission on the part of a plaintiff, amounting to a want of ordinary care, as, concurring or cooperating with the negligence act of the defendant, is a proximate cause or occasion of the injury complained of.

2. The mere fact that contributory negligence may be pleaded as a defense does not justify the submission on that issue to the jury where there is no evidence to support it.

3. Ordinarily, contributory negligence is a question for the jury; but, where there is no basis in the evidence for a finding of contributory negligence, it is error to instruct on the subject and thereby to submit to the jury an issue which is outside the evidence.

SIMMONS C. J., and YEAGER and CHAPPELL, JJ., dissenting.

Charles E. McCarl, of McCook, for appellant.

Colfer Russell & Colfer, of McCook, for appellee.

Heard before SIMMONS, C. J., PAINE, MESSMORE, YEAGER, CHAPPELL, and WENKE JJ., and KROGER, District Judge.

PAINE Justice.

Plaintiff brought suit against Red Willow County for $576.74, damages to an automobile, which were caused by its falling into a hole in a public road, plaintiff being compelled to pay said sum by reason of being the insurance carrier. At the close of all the evidence, the plaintiff moved to discharge the jury and direct a verdict for the plaintiff, which motion was sustained, and defendant appealed.

The plaintiff alleged that the defendant, Red Willow County, is duly organized under the laws of Nebraska, and is not under township organization; that there is a public road running east and west between Sections 4 and 9, all in Township 1, Range 28, Red Willow County, Nebraska, which public road had been worked and maintained by the defendant county, which is liable to keep said road in repair.

It is further alleged that one Wilson Coghill was driving his 1940 Chrysler sedan, on September 10, 1946, about 6:30 p. m., between Sections 4 and 9, and at the southwest corner of Section 4 he turned to the right, which was to the north, on the public road, and the automobile was precipitated into a hole or depression, about 8 feet deep and 30 feet in diameter, which hole or depression was completely hidden from sight and view of travelers on said road, which wrecked and damaged the automobile; that the defendant county through its employees had notice and knowledge of the defect in the highway, but willfully and negligently permitted said road to remain in a state of bad repair, and negligently omitted to fill it up, or provide barricades to warn travelers of the danger; that the plaintiff is engaged in the business of insuring automobiles against such damage and loss, and was compelled to pay the owner of said automobile the sum of $576.74, whereupon the owner executed a certain subrogation receipt, attached to and made a part of the petition, thus making the plaintiff the owner and holder of a claim against the defendant county for said sum, no part of which has been paid, and judgment was demanded.

The answer of the defendant county is a denial of many of the allegations in the petition, followed by an allegation that whatever injury, damage, or loss Wilson Coghill sustained by driving his automobile into the hole in the road was occasioned by his gross negligence, which was the proximate cause thereof; that he failed to keep a proper lookout ahead for defects in the highway, that his automobile was not under proper control so that he was able to stop within the area of his vision, and that he failed to maintain proper brakes. The reply was a general denial.

The defendant assigned as error the refusal of the court to submit the issues to a jury, and the entering of a judgment for the plaintiff.

The evidence disclosed that Wilson Coghill lived in defendant county about 1 mile west of the town of Marion, which is a mile north of the Kansas line, and that the place of the accident is about 4 miles north of Marion and 15 miles southeast of McCook, the county seat of defendant county. Coghill, with his wife and son, was driving west on this county road at about 10 miles an hour, and turned toward the north on a public road which was very little used, and within a few feet after turning to the north his left front wheel slipped or dropped into a hole in the highway, causing the car to turn over on its top. The automobile was badly damaged, the itemized exhibit A showing the largest item being $125 for a new top, the total of all the damages amounting to $626.74, but the policy had a $50 deductible clause attached to it, so that the plaintiff insurance company was compelled to pay the owner of the car but $576.74, and thereupon became subrogated to his claim against the county.

The driver of the car testified that there were no barriers shutting off the road; that the weeds grew very high on the west side of this hole, casting a shadow over the road at that time of day; that he had no knowledge that there was a hole there until his left front wheel dropped into it. He testified that the sum did not interfere with his vision.

George Whisler, a witness for the plaintiff, testified that he lives some 300 yards east of the hole, and was watching out of his window and saw the car fall over into the hole, and went right out to see if somebody was caught under the car. He had lived there about eight or ten years, and there had been a hole there for several years, but there was a track around it. He testified that the pictures introduced in evidence, showing the growth of weeds, tall sunflowers, etc., on both sides of the road, correctly represented the condition at the time of the accident. He further testified that one Bob Puelz had fallen into the hole some three months before.

The quarter of land, adjoining this hole, where Mr. Whisler lived was farmed to wheat by Rudolph Schultz, who testified that at harvest time he had had a talk with L. E. Nokes, in which he told him they were going to harvest the wheat and they wanted to haul it over that road; that it had a high center, and he wanted him to come out and drag the ridges down, and probably three days later, which would have been early in July, 1946, they came out and worked the road some. He testified as to the washout in the road in the corner; that while the hole was 7 to 10 feet deep there was still room for a car to squeeze by; that after they had hauled out wheat, there were rains. He testified that there was no barricade, flag, or warning sign to indicate that there was a hole in the road.

The county called but two witnesses, Myron Bennett, who ran the road maintainer, and L. E. Nokes, in whose commissioner district the place of the accident is located. Myron Bennett, who lives at Danbury, which is 5 miles east and 2 miles south of the hole in question, testified that he recalled smoothing up the road at the place of the accident during harvest time in July. His machine is a 74-horsepower motor, and has a 12-foot blade on it, and he was at this place twice about a week apart in July. On cross-examination he testified that he noticed this washout, about 15 or 16 feet from a cornerpost and he attempted to push some dirt off into it with his blade, but did not fill it up. He was just taking out the high center.

L. E. Nokes, one of the three county commissioners, testified that there are about 570 miles of road in his commissioner district to maintain and supervise. He testified that he could not recall whether anyone had ever given him notice that any part of the road in question was dangerous to travel.

Frederick Schultz, son of Rudolph Schultz, testified for plaintiff that he had lived in the neighborhood all his life and that this hole had been there five or six years; that there was considerable drainage from the north and northeast running down into that hole, and every time it rained 'it would wash out a little bit bigger.'

Sheriff Emmett L. Trosper, called by plaintiff, testified that he went out the next morning and took pictures of the hole and of the car on its top down in the hole. He testified that the hole was 8 or 10 feet deep and 15 feet wide.

The trial court sustained the motion of the plaintiff for a directed verdict, and thereupon gave the jury one instruction, reading as follows: 'Gentlemen of the jury, a motion has been made by the plaintiff that this matter be taken away from the jury and that a directed verdict be given to the plaintiff. On consideration of that motion, the court finds that the evidence here is conclusive that there existed a defect in the road at the south end of the road there between sections four and five in township one, range 28; that that defect was known to have existed at least during the middle of July 1946, by reason of the fact that one of the county's employees came there to work the road. The county employee said that he tried to make the road safe for the Schultz's, but he placed no barriers or no warning signs to the general public of the defect. The road was open to travel. There were no barriers in any way at either end of the road. There were no barriers placed at the particular hole. The evidence shows that Mr. Coghill entered upon this road driving slowly, or as we say in legal language, was taking due care. There was no contributory negligence on his part. It is true that there is some evidence that Mr. Coghill made the statement that he might have been blinded by the sun, but, as you know, he stated that he turned his car to the northwest and as he drove, he was driving about ten miles an hour. From that evidence, it is very clear that he...

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