Mason v. Hillsdale Highway District

• Decision Date: 20 December 1944
• Docket Number: 7151
• Parties: WILLIAM MASON; and LOUIS GEORGE MASON, RICHARD EUGENE MASON, PATRICIA ANN MASON, SHIRLEY GRACE MASON, and WILLIAM FREDERICK MASON, by and through their guardian ad litem, WILLIAM MASON; ZELDA LOUISE MASON, and ROSEMARY POULTER, Respondents, v. HILLSDALE HIGHWAY DISTRICT, a body politic and corporate, Appellant, and WILLIAM MASON, Respondent, v. HILLSDALE HIGHWAY DISTRICT, a body politic and corporate, Appellant
• Court: Idaho Supreme Court

154 P.2d 490

65 Idaho 833

WILLIAM MASON; and LOUIS GEORGE MASON, RICHARD EUGENE MASON, PATRICIA ANN MASON, SHIRLEY GRACE MASON, and WILLIAM FREDERICK MASON, by and through their guardian ad litem, WILLIAM MASON; ZELDA LOUISE MASON, and ROSEMARY POULTER, Respondents, v. HILLSDALE HIGHWAY DISTRICT, a body politic and corporate, Appellant, and WILLIAM MASON, Respondent, v. HILLSDALE HIGHWAY DISTRICT, a body politic and corporate, Appellant

No. 7151

Supreme Court of Idaho

December 20, 1944

Rehearing Denied January 15, 1945.)

1. Highways

Municipal corporations

Municipalities including highway districts, are liable for torts.

2. Statutes

Unless clearly so stated and evidently so intended, a statute will not be construed to have changed common law.

3. Statutes

A title of an act, though it need not be index of all its provisions must include purpose and intent of legislation as disclosed by body of act.

4. Highways

The statute making all highways in state part of statewide highway system and providing that counties, highway districts, good roads districts, etc., shall act as agents of state as respects such highways, does not cancel liability of highway districts for their torts in connection with maintenance or construction of highways, where neither the title nor body of the statute indicates such legislative intent. (Sess. Laws 1939, chap. 16, sec. 3.)

5. Highways

That statute making all highways in state part of state highway system makes respective highway districts agents of state for administration, construction and maintenance of highways and does not necessarily establish that highway districts are immune from suit for their torts because state is so immune in view of purpose of such statute. (Sess. Laws 1939, chap 16, sec. 3.)

6. Highways

The general rule that a highway district or other municipality is immune from tort liability for damages resulting from errors of judgment in adoption of a plan of public improvement is of limited application, and such a district or corporation cannot escape liability for breach of its positive duties by showing that such breach was result of plan adopted by it.

7. Negligence

Negligence, contributory negligence, and proximate cause are questions of jury unless proof is so clear that different minds cannot reasonably draw different conclusions, or where all reasonable minds would construe facts and circumstances in only one way.

8. Automobiles

Where automobile skidded on icy longitudinal tread planks of bridge and driver was unable to get automobile back on tread planks and after automobile left bridge it traveled about 70 feet and skidded off narrow roadway into canal near culvert, questions of highway district's negligence in construction of bridge and failure to have guard rails and warning signs near culvert, and in permitting eroded cuts in sides of road, and driver's contributory negligence and proximate cause were for jury. (Sess. Laws 1939, chap. 16, sec. 3.)

9. Appeal and error

In action for damages arising out of automobile accident, admission of testimony of civil engineer and farmers living in vicinity that they considered tread planks of highway bridge on which automobile skidded negligently dangerous, if erroneous as not proper subject of expert or opinion evidence and as invading province of jury, was not so prejudicial to defendant highway district as to require reversal.

10. Trial

Where evidence is erroneously admitted, fact that adverse party had introduced contrary evidence is not justification as against motion for nonsuit.

11. Appeal and error

Appellant's criticism of trial court's remarks were not before appellate court for review where remarks were not obnoxious and where there were no adverse rulings.

12. Trial

It is trial court's duty to instruct on both parties' theories of a case if there is any evidence to support such theories.

13. Trial

Where trial court in its instructions carefully covered issues raised by pleadings in action for damages growing out of automobile accident, defendant's contention that because instructions covered theories of both parties they were in hopeless conflict and unintelligible could not be sustained.

Rehearing Denied January 15, 1945.

Appeal from the District Court of the Eleventh Judicial District, in and for Jerome County. Hon. T. Bailey Lee, Judge.

Affirmed.

Richard Seeley, Parry & Thoman, and J. R. Kennan for appellant.

Since the act of the Idaho Legislature in 1939, (Chap. 16, 1939 Sess. Laws) declaring all highways to be "an integral part of the State-wide highway system," and declaring all highway districts to be "agents of the State of Idaho," such highway districts are not liable to suits such as those involved in this appeal. (Idaho Sess. Laws, 1939, chap. 16; Strickfaden v. Greencreek Highway Dist., 42 Ida. 738; Ada County v. Wright, 60 Ida. 394; Claussen v. Luverne, (Minn.) 115 N.W. 643, 15 L. R. A. (N. S. 698); Riddoch v. Washington, 123 P. 450, 42 L. R. A., N. S. 251, 25 R. C. L. 407.)

Where evidence shows that Respondent and wife, knowing the icy and slippery condition of highway, drove their automobile at an excessive rate of speed and in a reckless manner, they are guilty of negligence and no recovery can be had. (5 Am. Jur., Autos No. 407, No. 423, No. 425; Gage v. Atchison Ry. Co., (Kan.) 137 P. 938.)

So-called expert evidence in regard to the safety of streets, bridges, etc., is inadmissible. (Wilkerson v. City of ElMonte, (Cal.) 62 P.2d 790 at 794 and 795; Hunton v. California Portland Cement Co., (Cal.) 123 P.2d 947 at 953; Anderson v. Seattle Automobile Co. Inc., (Wash.) 265 P. 162 at 164.)

A highway district is under no duty to erect barriers and post signs in absence of statutory requirement or unless situation is inherently dangerous or of such a character as to mislead a traveler exercising reasonable care. (Tyler v. Pierce County, (Wash.) 62 P.2d 32; Swain v. Spokane, (Wash.) 162 P. 991; L. R. A. 1917D, 754; Wessels v. Stevens County, (Wash.) 188 P. 490.)

Chapman & Chapman for respondents.

Municipalities, including highway districts, are liable for the negligent construction and maintenance of roads and highways. (Strickfaden v. Green Creek Highway Dist., 42 Ida. 738, 248 P. 456, 49 A. L. R. 1057; Moreton v. Village of St. Anthony, 9 Ida. 532, 75 P. 262; City of Lewiston v. Isaman, 19 Ida. 653, 115 P. 494; Douglas v. City of Moscow, 50 Ida. 104, 294 P. 334; Carson v. City of Genesee, 9 Ida. 244, 74 P. 862; Powers v. Boise City, 22 Ida. 286, 125 P. 194.)

A subject of a statute must be expressed in its title. (Sec. 393, 59 C. J., p. 811; Utah Power & Light Co. v. Pfost, 52 S.Ct. 548, 286 U.S. 165, 76 L.Ed. 1038, affirming 54 F.2d 803; State v. Pioneer Nurseries Co., 26 Ida. 332, 143 P. 405.)

Whether a highway district or municipality was negligent in the maintenance of a road or highway is a question of fact for the jury. (Miller v. Village of Mullan, 17 Ida. 28, 104 P. 660; Douglas v. City of Moscow, 50 Ida. 104, 294 P. 334; Muir v. City of Pocatello, 36 Ida. 532, 212 P. 345; Goodman v. Village of McCammon, 42 Ida. 696, 247 P. 789.)

The question of contributory negligence is one for the jury. (Berland v. City of Hailey, 61 Ida. 333, 101 P.2d 17; Stewart v. City of Idaho Falls, 61 Ida. 471, 103 P.2d 697.)

Where evidence is erroneously admitted and its admission is not prejudicial to the adverse party, such error is harmless. (Judy v. Reilly Atkinson & Co., 59 Ida. 752.)

Everett M. Sweeley, amicus curiae.

In Idaho all highways now constructed, or thereafter to be constructed, are ipso factor State Highways, and counties and highway districts act in respect of the maintenance, operation and care of the highways within their respective territories both as agents and representatives of the state and under the general supervision of the state. (Sess. Laws 1939, chap. 16, secs. 1, 2, 3.)

Construction, operation and maintenance of state highways is a governmental function of the state. (Ada County v. Wright, 60 Ida. 394, 406.)

Neither the state as principal nor counties and highway districts as agents of the state are liable for damages for nonperformance or improper exercise of governmental powers. (Strickfaden v. Green Creek Highway Dist., 42 Ida. 738, 749.)

Givens, J. Holden, C. J., and Budge, and Dunlap, JJ., concur. Ailshie, J., dissents.

OPINION

Givens, J.

The morning of November 25, 1940, Mr. and Mrs. Mason, accompanied by their four year old son, drove from near Kimberly, their home, to Hazelton and then on the main highway leading from Hazelton to Rupert, turning south at the Greenwood Schoolhouse, intending to look at a farm which they considered renting. Respondent Mason and his wife, as the neighborhood unfolded, decided they were not interested in renting a farm in that community, and respondent turned his car around and drove back over the Milner-Greenwood highway which they had just come over, within the boundaries of the defendant highway district. This road (not a main and through highway and but lightly traveled) traversed a bridge over the Gooding Canal, 73 feet long and 18 1/2 feet wide between the felloe guards, with tread planks on it 18 inches apart. [Exhibit S.] Each tread plank was made up of three three-by-twelve planks. Seventy feet north of the Gooding Canal Bridge and at an elevation three feet below

[SEE EXHIBIT IN ORIGINAL]

it was a cement culvert on the North Side Canal. [Exhibit D.] The roadway over the culvert was 17 feet wide. About

[SEE EXHIBIT IN ORIGINAL]

six feet south of the concrete culvert on the west side of the highway was an erosion into the North Side Canal, and May 8 1941, the distance on the highway between the heads of the two eroded places was just 14 feet. Mr....