Kelso v. Seward County
| Decision Date | 01 June 1928 |
| Docket Number | 25685 |
| Citation | 219 N.W. 843,117 Neb. 136 |
| Parties | JOHN W. KELSO, APPELLEE, v. SEWARD COUNTY, APPELLEE: STANDARD BRIDGE COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Seward county: HARRY D. LANDIS JUDGE. Affirmed.
AFFIRMED.
John W Battin and C. A. Sorensen, for appellant.
Claude S. Wilson, Thomas, Vail & Stoner, Roy F. Gilkeson, Hymen Rosenberg, McKillip & Barth and Albert S. Johnston, contra.
Heard before GOSS, C. J., ROSE, DEAN, THOMPSON, EBERLY and HOWELL JJ., and REDICK and WHEELER, District Judges.
The action was brought to recover damages to plaintiff's motor car and for personal injuries sustained from driving into an excavation on the public highway a few miles north of Seward, Nebraska.
The defendant Standard Bridge Company, by contract with the defendant Seward county, was engaged in the construction of a new bridge. The new bridge was several feet shorter than the old one and during the construction operations an excavation eight or ten feet wide and about eight feet deep extended across the highway on both ends of the bridge. The defendant had provided a detour around the bridge, erected a barricade across the highway at each end and hung a red lantern on the bridge. About 4 o'clock on the morning of October 4 1924, the plaintiff, driving his Maxwell car in a southerly direction, plunged into the excavation. The barricade was down; the warning lantern on the bridge was out. The question of defendant's care in erecting and maintaining suitable barricades and warning signals was submitted to the jury under proper instructions. Plaintiff recovered a verdict of $ 1,500 against the defendant Standard Bridge Company, but failed to recover against Seward county. The verdict is amply supported by the evidence as to damage to plaintiff's car, personal injuries actually sustained, negligence on the part of the defendant, and lack of negligence on plaintiff's part. We were not favored with an oral argument. The negligence of defendant is not seriously controverted in defendant's brief, but the errors relied on for reversal in defendant's brief are: (1) The inconsistency of the verdict as being against the bridge company only, and not against the county; (2) the wording of the court's instruction on comparative negligence. It is argued that the obligation of maintaining a safe highway, of keeping barricades up and warning signals lighted, rested equally upon the county and the bridge contractor, and that the jury could not consistently find negligence on the part of the bridge contractor, and not on the part of the county. The evidence is ample to sustain a verdict against the county, had the jury rendered one. It would seem that defendant bridge company could not object merely because there was no verdict rendered against the codefendant, Seward county. Plaintiff could object, but did not. In Cleland v. Anderson, 66 Neb. 252, 92 N.W. 306, we held that, while a plaintiff could complain of a verdict as inconsistent in holding one of several joint defendants liable, the defendants could not. This seems logical, but we strayed from this doctrine in Gerner v. Yates, 61 Neb. 100, 84 N.W. 596, and in Mansfield v. Farmers' State Bank, 112 Neb. 583, 200 N.W. 53. The point, however, is immaterial to the correct determination of this action. The contract between Seward county and the Standard Bridge Company, erroneously refused admission as evidence, is attached to the record and shows that the defendant Standard Bridge Company contracted to hold Seward county harmless from any claim for damages brought in consequence of any neglect to safeguard the work. Even if the verdict had been against both defendants, under its contract with Seward county, the defendant bridge company would have been obligated to pay it. The contract should have been admitted in evidence. The jury reached the same conclusion as would have been reached had judgment...
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