Kiel v. DeSmet Tp., 11598

• Decision Date: 25 May 1976
• Docket Number: No. 11598,11598
• Citation: 242 N.W.2d 153,90 S.D. 492
• Parties: Ardis KIEL, Plaintiff and Appellant, v. DeSMET TOWNSHIP et al., Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 153

242 N.W.2d 153

90 S.D. 492

Ardis KIEL, Plaintiff and Appellant, v. DeSMET TOWNSHIP et al., Defendants and Respondents.

No. 11598.

Supreme Court of South Dakota.

May 25, 1976.

Vance R. C. Goldammer, Sioux Falls, argued the cause for appellant. With him on the brief were Gary J. Pashby and Robert J. McDowell, of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for plaintiff and appellant.

Lyle J. Wirt, of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and respondent Morris Lee.

William G. Taylor, Jr., of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendants and respondents DeSmet Township, Leslie Dannenbring and Selmer Skyberg.

WOLLMAN, Justice.

Appellant became totally blind as a result of injuries that she suffered when a car in which she was riding as a passenger ran off the road at a dead-end intersection on a township road approximately two miles northwest of DeSmet, South Dakota, late at night on June 27, 1971. She brought suit against the driver of the car, the township in which the intersection is located, the township supervisors, and the private contractor who had maintained the road in question for the township. The trial court entered summary judgment in favor of all defendants except the driver of the car.* Appellant has appealed from the summary judgment entered in favor of the township and the township supervisors. We reverse.

The pleadings, depositions and affidavits on file reveal that the township road in question, which runs north and south, ends at a 'T' intersection with another township road at a point where the accident occurred. Some years prior to the accident the township supervisors had placed a road sign bearing the words 'Dead End' on the west shoulder of the road approximately 250 feet north of the intersection. This sign had been knocked down on numerous occasions by persons transporting farm machinery and haystack movers over this road, which has a width of some 20 feet.

On or about June 10, 1971, Merle Klinkel, defendant road contractor referred to above, observed this sign broken over and lying in the ditch as he was maintaining the road. In accordance with instructions that he had received from the township supervisors, he carried the sign to the 'T' intersection, where he placed it facing north in the center of the intersection by inserting it in the fence that is located on the south right-of-way line of the east-west road with which the road in question intersects. Mr. Klinkel called one of the township supervisors later that day and told him that the sign had been knocked down and that he had placed it in the fence at the intersection.

SDCL 31--32--10 provides in part that:

'In case any highway, culvert, or bridge shall become in whole or in part destroyed or out of repair by reason of floods, fires, or other cause to such extent as to endanger the safety of public travel, it shall be the duty of the governing body or board under statutory duty to maintain such highway, culvert, or bridge upon receiving notice thereof to cause to be erected for the protection of travel and public safety, within forty-eight hours thereafter, substantial guards over such defect or across such highway of sufficient height, width, and strength to guard the public from accident or injury and to repair the same within a reasonable time thereafter. * * *'

SDCL 32--32--11 provides in part that:

'Any person who shall sustain injury to person or property by reason of any violation of § 31--32--10 shall have a cause of action against the county, township, city, or town as the case may be for such damages as he may have sustained.'

In Dohrman v. Lawrence County, 82 S.D. 207, 143 N.W.2d 865, and in Reaney v. Union County, 69 S.D. 392, 10 N.W.2d 762, this court held that the failure of the governing board or body to install adequate signs warning of danger incident to a sharp curve or steep hill is not a violation of the duty imposed under the provisions of SDCL 31--32--10. In Jensen v. Hutchinson County, 84 S.D. 60, 166 N.W.2d 827, we said that SDCL 31--32--10 contemplates only damage to the driving portion of a highway and cannot be construed to apply to road signs. Appellant asks that we reconsider our decision in the Jensen case and adopt the views expressed by Judge Hanson, joined by Judge Homeyer, in dissent therein.

Overruling a prior decision, especially a relatively recent decision, is not something to be lightly done. After due consideration, however, we conclude that appellant's argument is well taken and that the majority in the Jensen case took too narrow a view of the duties imposed upon a governing body or board by SDCL 31--32--10. We adopt the reasoning expressed by Judge Hanson in his dissenting opinion in the Jensen case, from which we quote as follows:

'Obviously, the main obligation of a county under this statute (SDCL 31--32--10) is to repair all defects in a county highway which endanger the safety of public travel. Incidentally the statute also imposes a secondary duty upon the county to erect temporary guards over defects, where needed, until repairs are made.

'Significantly, the warning signs involved in the Reaney and Dohrman cases had never been in existence so their absence could not be considered a defect which damaged, destroyed, or caused the highway to be out of repair. In the present action it is alleged a warning sign incident to the dangerous curve had originally been installed and maintained. During some road construction the warning sign was removed and never replaced.

'Unless the dangerous curve was eliminated by the road construction the county was under...