Olson v. Wayne County

• Decision Date: 19 June 1953
• Docket Number: No. 33333,33333
• Citation: 157 Neb. 213,59 N.W.2d 400
• Parties: OLSON v. WAYNE COUNTY.
• Court: Nebraska Supreme Court

Page 400

59 N.W.2d 400

157 Neb. 213

OLSON v. WAYNE COUNTY.

No. 33333.

Supreme Court of Nebraska.

June 19, 1953.

Syllabus by the Court.

1. A motion to instruct a verdict admits the truth of all material and relevant evidence, and the party against whom the motion was made is entitled to have it considered in the light most favorable to him and to have the benefit of all inferences reasonably deducible therefrom in testing the correctness of the action of the court in granting the motion.

2. A right of action against a county for the recovery of damages resulting from a defective highway or bridge was unknown to the common law.

3. The source of liability of a county in this state for such damages is statutory.

4. 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 traveler using them while he is in the exercise of reasonable and ordinary caution and prudence.

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

6. A county is not an insurer of the safety of a user of its roads and bridges or of the safety of the roads and bridges maintained by it for the use of the public.

7. The word insufficiency in the statute referred to in the opinion means inadequate to the need, use, or purpose of the highway.

8. The word repair as used in the road laws means to restore to a sound or good condition after decay, injury, dilapidation, or partial destruction.

9. In an action to recover damages from a county by virtue of the statute the burden is on the plaintiff to establish negligence of the county and that the negligence was the proximate cause of the injury or that it was a cause that proximately contributed to it.

10. Negligence may not be predicated upon the crookedness of a county highway or the location of a bridge constructed in accordance with the general plans of the highway and adopted as a part of it.

11. A county is not obligated to erect and maintain safety warning signs along its highways apprising the public of conditions such as curves, turns, location of bridges, and similar situations that may be hazardous, unless the duty to exercise reasonable and ordinary care in the maintenance of its highways requires it to do so at a particular location.

George B. Boland, Omaha, Harry N. Larson, Wakefield, for appellant.

Charles E. McDermott and H. D. Addison, Wayne, for appellee.

Before CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

This case was brought by appellant to recover damages from appellee for injuries inflicted upon him as a result of the alleged insufficiency and disrepair of a public highway and bridge in Wayne County maintained by appellee for the use of the public upon which appellant was a traveler at the time of the accident in which he was injured.

The claims made by appellant are that appellee is a county of the state; that appellant was traveling towards the east by automobile in the nighttime on a highway and bridge of the county maintained by it for public use about 2 miles west and 2 miles south of Wakefield; that the highway and bridge were each insufficient, in disrepair, and unsafe for travel thereon; that appellee was negligent in these respects: Because it constructed and maintained a bridge on an angle from the southwest to the northeast over a deep ditch as a part of the highway which extended due west to east; that this required and there was a sharp turn in the highway immediately before and at the entrance to the bridge from the west which exposed any user thereof to the hazard and peril of going off the side of the bridge into the ditch; because the bridge did not have sufficient or reasonable guardrails, barriers, and abutments to protect travelers from the said hazard and peril, and the guardrails that were thereon were not in proper repair or painted so that they were easily visible; because there were no warning signs or devices to inform travelers of the dangerous situation at the bridge; and because appellee knew or was charged with knowledge that the bridge was unsafe for public travel upon the highway but failed to provide warning thereof to the public or to remedy the dangerous situation. It is further claimed that the insufficiency and disrepair of the highway and bridge and the negligence of appellee proximately caused the vehicle in which appellant was passing over the road and bridge to go off the right-hand side of the bridge, against the farther side of the ditch, and into the ditch; and that he was thereby seriously injured and is totally and permanently disabled. Appellee denied all the claims of appellant except it admitted that it is a county of the state; that there was an accident at about the time and place described by appellant; and that he sustained some injury.

The district court at the conclusion of the evidence of appellant, on motion of appellee, directed a verdict for the county. A judgment of dismissal of the case was made and a motion for new trial was denied.

The manner of considering the evidence of the party against whom a verdict has been directed or a motion to dismiss the case has been sustained in determining the correctness of or the error in the action of a court in that regard does not required discussion. Armer v. Omaha & C. B. St. Ry. Co., 151 Neb. 431, 37 N.W.2d 607; Weisenmiller v. Nestor, 153 Neb. 153, 43 N.W.2d 568.

Appellant was on June 29, 1952, 16 years of age and was a member of the Wakefield Junior Legion baseball team. He and four other members of the team played in a night game of baseball with the Wayne Junior Legion team at Wayne. After the game four of them were returning to Wakefield in an automobile operated by Thomas Shellington, one of the Wakefield players, who was 17 years of age. Appellant sat on the right side of the rear seat of the car. They traveled out of Wayne on what is described as the Seventh Street road and continued until they were about 2 miles south and 2 miles west of Wakefield. That was the place of the accident involved in this case which occurred about 11:30 p. m.

The highway was a graded, dirt, county road. It was dry, quite smooth, and in reasonably good condition. It had one lane of travel, 'room for two cars.' It was about 20 feet wide. The road as it approached the place of the accident extended due west to east. The accident happened on a bridge that constituted a part of the highway. The road extended from due west to near the bridge and then made a slight curve to the southwest end of the bridge. The bridge is on an angle from the southwest to the northeast. The curve in the road commences just 'west of the bridge.' There is a turn in the road 'Partly on and partly off' the bridge. 'The road couldn't come square into the bridge * * *.' For about 50 rods west of the bridge it was level. The bridge was not easily visible to a person using the road while traveling this distance towards it. The traveler from the west could not see the bridge until he 'was right on it.' The width of the bridge was 24 feet. It was 28 feet long, had a concrete foundation, a cement floor, and was supported by a steel frame. It had a railing on each side consisting of two 3 1/2-inch channel irons, the length of the bridge, fastened to 4 or 5 metal standards properly spaced on each side set in cement. The railings were unpainted, badly rusted, and dark in color. The railing on the right or southeast side had been for several years bent outward and downward at an angle from the bridge. Vehicles had run into it. At the southwest corner of the bridge it was substantially unfastened at the time of the accident. It was described as bent up and dilapidated, and at the southwest corner of the bridge it was 'practically off.' It had no effect in its condition of preventing a vehicle from going off the side of the bridge.

A bridge plank, unpainted and weatherbeaten, 12 inches in width and 3 inches thick was placed along the right-hand side of the bridge. The west end was at the southwest corner and the plank extended eastward about 20 feet. It was fastened to the railing after it had been bent over in a previous accident. At the time in question one end of the plank was fastened so that the top of it was about 2 1/2 feet above the floor of the bridge and the other end rested on the floor. The plank was not noticeable to one going eastward on the highway until he was close to it.

There is nothing to warn a traveler approaching from west of the bridge or of its situation in reference to the road. There had been at some time before a warning sign on the right-hand side of the road west of the bridge and at other times there had been reflectors on or near its southwest corner. These had been removed before this accident.

The west and east road is intersected at the southwest end of the bridge by a road from the south and by a road from the north at the northeast end of the bridge. There have been several accidents on this bridge.

The weather the night of the accident was not stormy, 'it was just dark. It wasn't raining * * * it was just awful dark that night.'

The vehicle in which appellant was riding approached the bridge at a speed of 45 to 50 miles an hour on the right side of the road with its headlights on the high or bright beam. The driver of the car did not see the bridge until he was about 25 feet from it. The vehicle proceeded towards the east with its south or righthand wheels about 2 feet inside the southwest corner of the bridge. The car struck and broke the bridge plank above-described, went off the southeast side of the bridge, traveled through space for about 45 feet, and struck the bank on the far side of the ditch 5 1/2 feet lower than the bridge. It turned over and landed on its top 42 feet from where it contacted the bank of the ditch. It came...