McKinney v. Cass County

• Decision Date: 29 July 1966
• Docket Number: No. 36230,36230
• Citation: 180 Neb. 685,144 N.W.2d 416
• Parties: Earl R. McKINNEY, Appellant, v. The COUNTY OF CASS, Nebraska, Wayne Howard, Appellees.
• Court: Nebraska Supreme Court

Page 416

144 N.W.2d 416

180 Neb. 685

Earl R. McKINNEY, Appellant, v. The COUNTY OF CASS, Nebraska, Wayne Howard, Appellees.

No. 36230.

Supreme Court of Nebraska.

July 29, 1966.

Syllabus by the Court

1. A county is obligated to use reasonable and ordinary care in the construction, maintenance, and repair of its highways and bridges so that they will be reasonably safe for a traverler using them while he is in the exercise of reasonable and ordinary caution and prudence.

2. The duty of the county in this respect will not be extended beyond the words and fair implications of the statutory liability.

3. Instructions should be read and construed together, and, if as a whole they state the law correctly, they will be held sufficient, although one or more of them considered separately may be subject to just criticism.

4. Where an instruction, although erroneous, is not prejudicially so and cannot, by any course of logical reasoning, be deemed to have resulted in disadvantage to the complaining party, it is not legal cause or reason for granting a new trial

5. It is reversible error for the trial court to include in its instructions to the jury allegations of fact found in the pleadings, but which have not been supported by any evidence.

6. It is within the sound discretion of the trial court to permit a party in a civil case to withdraw his waiver of a right to jury trial if the application to do so is timely made and the waiver has not been acted upon to the prejudice of any party.

7. Where a party has sustained the burden and expense of a trial and has succeeded in securing the judgment of a jury on the facts in issue, he has the right to keep the benefit of that verdict unless there is prejudicial error in the proceedings by which it was secured.

Kier, Cobb & Luedtke, Leonard Dunker, Lincoln, for appellant.

Baylor, Evnen, Baylor & Urbom, Robert T. Grimit, Lincoln, Cassem, Tierney, Adams & Henatsch, John B. Henley, Omaha, James F. Begley, County Atty., Plattsmouth, for appellees.

Heard before CARTER, SPENCER, BOSLAUGH, BROWER, SMITH and McCOWN, JJ., and COLWELL, District Judge.

COLWELL, District Judge.

This is an auto accident case that occurred on Sunday, September 16, 1962, about 3:55 p.m., at an intersection of two rural graveled roads in Cass County, Nebraska, about 1 mile east of Greenwood, Nebraska. For convenience appellant Earl R. McKinney will be referred to as plaintiff, appellee County of Cass, Nebraska, as defendant Cass County, and appellee Wayne Howard as defendant Howard.

The plaintiff, aged 21 years, was riding as a passenger in the left rear seat of a 1957 green Chevrolet automobile owned and operated by Riley Mardin, aged 19 years. The Mardin vehicle was being driven in a northerly direction on a north-south county graveled road. Besides the plaintiff and Mardin there were four other male companions in the Mardin vehicle. Defendant Howard was alone driving his 1962 blue Ford automobile easterly on an east-west county graveled road. Both county roads were maintained by Cass County, Nebraska; and the east-west road was an arterial road. The stop signs at the accident intersection in question had been removed about 1 week prior to the date of the accident by employees of defendant Cass County, and no temporary stop signs or warning signs had been substituted. Defendant Howard was a rural mail carrier with 16 years experience on a route in that area; his mail route did not cross the accident intersection. Defendant Howard was familiar with the roads, the accident intersection, and also with the fact that some stop signs in the area had been removed for repainting and repair. None of the occupants of the Mardin automobile were familiar with the intersection.

The impact between the Howard automobile and the Mardin automobile occurred at about the center of the intersection. Mardin testified that just prior to entering the intersection the speed of his vehicle was about 45 miles per hour, and that he decreased the speed of his automobile to about 35 miles per hour as he entered the intersection; he looked to the east and to the west two or more times, beginning when he was about 100 feet south of the intersection; and he didn't see the Howard vehicle until just at time of impact, 'Just directly before the impact I just looked out the window and I saw a big blue fender.' None of the other occupants of the Mardin automobile ever saw the Howard automobile prior to the impact. Defendant Howard testified that when he was about 120 feet west of the intersection he saw 'a tunnel of dust' on the road to his right, and that through the weeds along the roadway he saw 'a green flash' at the end of the dust tunnel. At that time his speed was about 50 miles per hour; and he applied his brakes and reduced his speed to about 10 miles per hour at the time of the impact at the center of the intersection. The front of the Howard vehicle struck the middle and left rear side of the Mardin vehicle. Plaintiff received severe personal injuries as a result of the accident.

Plaintiff's amended petition alleges that defendant Cass County was negligent in causing the insufficiency and want of repair of the county roads, and that defendant Howard was negligent in that: 'A. He failed to maintain proper observation. B. He drove said vehicle at an excessive rate of speed for the then existing conditions. C. He failed to decrease the speed of his automobile as he approached an intersection and a place where special hazards existed * * *.' d. That although he knew of should have known that the stop signs had been removed on the north-south intersecting county road, he proceeded in utter disregard of that knowledge thus required and did run into and against the vehicle in which the plaintiff was riding where by the exercise of reasonable care he could have avoided the same.' Defendant Cass County answered by a general denial and alleged contributory negligence on the part of plaintiff. Defendant Howard answered admitting the alleged negligence of defendant Cass County, denied any negligence on the part of the defendant Howard and alleged contributory negligence of plaintiff. The cause was tried to a jury. At the conclusion of plaintiff's case a motion was made by defendant Cass County for a dismissal as to that defendant, which was sustained. The jury returned a verdict for defendant Howard, from which plaintiff appeals to this court.

Plaintiff claims error by the trial court in the dismissal of defendant Cass County at the close of plaintiff's evidence. Plaintiff's amended petition alleges that defendant Cass County was responsible for the insufficiency and want of repair of the roads at the accident intersection in the following particulars: 'A. That * * * County of Cass, Nebraska, did create a dangerous trap at the intersection of said county roads by removing the traffic controls * * *. B. * * * County of Cass, Nebraska, by and through its employees * * * did remove the stop signs and traffic controls from said intersection. C. * * * County of Cass, Nebraska, failed to place any temporary barriers or warning signs on either county road described to advise or warn motorists of the removal of the traffic control signs. D. * * * County of Cass, Nebraska, failed to use reasonable care in the removal of said signs for prevention of creating a traffic hazard.' The basis for liability on the part of defendant Cass County is found in section 39--834, R.R.S.1943, which provides in part: 'If special damage happens to any person, his term, carriage or other property by means of insufficiency or want of repair of a highway or bridge, which the county or counties are liable to keep in repair, the person sustaining the damage may recover in an action against the county, * * *.' In Olson v. Wayne County, 157 Neb. 213, 59 N.W.2d 400, we held: 'Where was not at common law a right of action against a county for the recovery of damages resulting from a defective highway or bridge. The source and extent of liability of a county in this state for damages of this character are statutory. * * * A county is obligated to use reasonable and ordinary care in the construction, maintenance, and repair of its highways and bridges so that they will be reasonably safe for the traveler using them while he is in the exercise of reasonable and ordinary caution and prudence. The duty of the county will not be extended by construction beyond the words and fair implication of the statutory liability. A county is not an insurer of the safety of a person who uses its roads and bridges or the safety of the highways and bridges maintained by it for the use of the public. * * * the burden is on the plaintiff to establish negligence of the county and that its negligent act or omission was the proximate cause of the injury to the plaintiff or that it was a cause that proximately contributed to it.' See, also, Dickenson v. County of Cheyenne, 146 Neb. 36, 18 N.W.2d 559; Wittwer v. County of Richardson, 153 Neb. 200, 43 N.W.2d 505; Brooks v. Thayer County, 126 Neb. 610, 254 N.W. 413.

The record shows that the traveled surface of both intersecting county roads was free of any defects. Plaintiff failed to sustain the burden of proof required of him, and the trial court properly dismissed defendant Cass County as a party defendant at the conclusion of plaintiff's case.

Plaintiff states that since defendant Cass County was dismissed as a party defendant at the close of plaintiff's evidence it was confusing and misleading to the jury; and that it was error to give instruction No. 3 in part as follows: 'The Court has ruled as a matter of law that no verdict may be brought in by you as against the County of Cass, Nebraska, and such County is no longer a party defendant in this case. However, if you find that the County of Cass, Nebraska, was negligent in one or more of the particulars charged against it, and if you find that the defendant was negligent...