Kehm v. Dilts

• Decision Date: 15 December 1936
• Docket Number: 43481.
• Citation: 270 N.W. 388,222 Iowa 826
• Parties: KEHM v. DILTS.
• Court: Iowa Supreme Court

270 N.W. 388

222 Iowa 826

KEHM v. DILTS.

No. 43481.

Supreme Court of Iowa.

December 15, 1936

Appeal from District Court, Cerro Gordo County; M. H. Kepler, Judge.

Action for damages sustained by plaintiff, a passenger in an automobile driven over a bump on a new culvert in a dirt road. From a verdict and judgment of $1,500 in favor of plaintiff, defendant appeals. The facts are stated in the opinion.

Reversed.

Senneff, Bliss & Senneff, of Mason City, for appellant.

Breese & Cornwell, of Mason City, for appellee.

KINTZINGER, Justice.

Between 7 and 8 o'clock on the evening of July 9, 1935, while riding as a passenger in the rear seat of an automobile driven by Milo Smith, in an easterly direction on a dirt road, a few miles southwest of Nora Springs, Iowa, plaintiff was injured as a result of being thrown against the top of the car, driven over a culvert and hump thereon extending across the entire roadway. The culvert was installed by the defendant under a contract with the county, about two days prior to the injury.

Plaintiff alleges that defendant was guilty of negligence in the following respects: (1) In placing a 24-inch culvert pipe covered with a dirt fill across the highway, leaving a bump or ridge across the road at a substantially higher level than the surrounding surface of the road; and (2) in not placing a barricade or warning in the road to warn travelers of the existence of said hump.

At the conclusion of the evidence, defendant's motion for a directed verdict was overruled, and the case was submitted to the jury, which returned a verdict in favor of plaintiff, on which judgment was entered. A motion for new trial and exceptions to instructions were also overruled. Defendant appeals.

The testimony shows that in placing the culvert across the roadway the defendant excavated a trench across the road about 32 to 34 inches deep. The pipe was put into this trench, and the earth excavated therefrom was thrown over the culvert, leaving a hump or bump across the roadway. There is a dispute in the testimony as to the height and size of the bump after the work was completed. The testimony on the part of plaintiff tends to show that the hump was about 2 feet wide at the bottom, and 1 foot to 18 inches higher than the level of the roadway at the top; that of the defendant tends to show that the earth covering the culvert was spread out so that the width at the bottom of the hump on the road was about 8 feet, and the height from 5 to 8 inches higher than the level of the road. The culvert was constructed on the 7th or 8th of July, 1935, by and with the knowledge of the defendant.

The witnesses for plaintiff testify that the entire roadway traveled by them on this highway west of the culvert was level and smooth, and that none of the occupants of the car saw any similar hump or any construction outfit on the roadway before reaching the place of the accident.

The car in which plaintiff was riding was traveling at the moderate speed of about 25 miles an hour, and the evidence tends to show that neither the driver nor any of the other occupants of the car observed the bump until they came to a point within 20 or 25 feet therefrom. They said when they first saw the bump it did not appear as large as it was. Upon seeing the bump, the driver slowed down his car, so that when it passed over the bump it was traveling between 5 and 7 miles an hour. There was no perceptible bounce of the car when the front wheels passed over the bump, but, when the rear wheels passed over, there was a severe jolt, throwing the plaintiff against the top of the car, bruising her head neck, and shoulders, inflicting a 4 1/2 -inch cut in her scalp. She was taken to a doctor, had several stitches sewed in her scalp, and was then taken home, where she was confined to her bed for several days. Plaintiff's testimony shows that she suffered severe pains in her head, and that it took several weeks for the scalp wound to heal; and that she continued to suffer pains in her head at frequent periods, which continued about twice a week until the time of the trial.

Mr. Smith and Mr. Kehm and the plaintiff's five year old daughter were in the front seat, and the plaintiff, Mrs. Smith, and plaintiff's baby occupied the rear seat, with the Smiths' little girl standing up behind the front seat. The evidence shows that it was still daylight and the sun was about to set when the acci dent occurred.

I.

Appellant contends that the court erred in overruling its motion for a directed verdict because the evidence fails to establish any negligence on the part of the defendant in the construction of the culvert. The culvert in question was constructed by the defendant under a contract with the county.

The undisputed evidence shows there was some rise in the roadway where the culvert was constructed. It is conceded by the defendant that the top of the bump was from 5 to 7 inches above the level of the roadway. Defendant contends, however, that the dirt was thrown over the culvert in such a manner as to leave it about 8 feet wide at the bottom with a gradual approach to the top of the bump, in such a manner that the roadway was left in a reasonably safe condition for public travel. Plaintiff's testimony tends to show that the bump was about 2 or 3 feet wide at the bottom, and about 1 foot to 18 inches above the level of the roadway at the top. The question, therefore, is purely one of fact as to the condition of the roadway at the culvert, and the question of defendant's negligence was, therefore, properly submitted to the jury.

Under the rule in this state the defendant in constructing the culvert was required to leave the roadway at that point in a reasonably safe condition for public travel thereon. His liability accrues, not because of a breach of contract, but for his tort in making the highway dangerous and in failing to guard it. Defendant in this case was an independent contractor, and as such is liable for his own negligence. Elzig v. Bales, 135 Iowa 208, 112 N.W. 540; Law v. Bryant Asphaltic Pav. Co., 175 Iowa 747, 157 N.W. 175, 7 A.L.R. 1189; Wolford v. City of Grinnell, 179 Iowa 689, 161 N.W. 686; Grennell v. Cass County, 193 Iowa 697, 187 N.W. 504; Spiker v. Ottumwa, 193 Iowa 844, 186 N.W. 465; Schwind v. Gibson, 220 Iowa 377, 260 N.W. 853; Wood v. Ind. School Dist., 44 Iowa 27; Fitzgibbon v. Dredging Co., 141 Iowa 328, 117 N.W. 878; Solberg v. Schlosser, 20 N.D. 307, 127 N.W. 91, 30 L.R.A.(N.S.) 1111; Hoffman v. City of St. Paul, 187 Minn. 320, 245 N.W. 373, 86 A.L.R. 198.

In Grennell v. Cass County, 193 Iowa 697, loc. cit. 705, 187 N.W. 504, 507, this court said: " If the appellee be liable, it is not simply because of a breach of contract, but for its tort in making a highway dangerous and failing to properly guard it. * * * The appellee contractor in this case was not a public officer or agency nor engaged in performing governmental functions. It was an independent contractor which had undertaken to construct the bridge with its own labor and materials. Its legal responsibilities, so far as third persons are concerned, were neither greater nor less than are assumed by every contractor who undertakes to produce a given result. * * * The employees engaged in the work are its own, and it alone is responsible for the damages, if by its negligence some third person is injured."

Solberg v. Schlosser, 20 N.D. 307, 127 N.W. 91, 30 L.R.A.(N.S.) 1111, is almost identical with the case at bar, and related to the liability of a contractor in failing to level down the dirt on the roadway in such a manner to make it reasonably safe for travel.

Of similar import is Hoffman v. City of St. Paul, 187 Minn. 320, 245 N.W. 373, loc. cit. 374, 86 A.L.R. 198, where the court said: " The evidence sustains a finding that the defendants were negligent in leaving the hump or ridge as it was and that their negligence caused the injury to the plaintiff."

The evidence of plaintiff tends to show that the culvert across the road was about 2 or 3 feet wide at the bottom, and about a foot to 18 inches higher than the level of the road.

We cannot say, as a matter of law, that an obstruction of this kind extending across a traveled roadway does not constitute negligence. Whether or not the hump in the roadway constituted negligence was peculiarly one for the jury.

It is undisputed that no barricade or warning of any kind was placed at or near the bump in question. If the hump in the roadway caused by the construction of the culvert was dangerous for travelers, then it was also a question for the jury to say whether or not the defendant was negligent in failing to place a barricade or construction warning at or near the hump in question.

We find no error in submitting the question of negligence to the jury.

II.

Appellant also contends that the court erred in not sustaining the motion for a directed verdict because the proximate cause of plaintiff's injuries was the action of the driver of the car in which plaintiff was riding, and that defendant is, therefore, not liable for plaintiff's injuries.

Defendant contends that, because the county engineer and one or two employees of the defendant testified that the culvert could be seen for a distance of 800 feet to the west, it was the driver's duty to stop his car and in some manner drive around the bump in order to avoid injury. It does not appear from the testimony of these witnesses, however, that the bump could be seen from that distance between 7:30 and 8 o'clock in the evening, as the sun was setting. The driver of the car and plaintiff's husband, who were in the front seat, both testified that the bump was not visible to them at the time they were approaching it until they came within 20 or 25 feet...