Pederson v. Canton Tp.

• Decision Date: 11 October 1948
• Docket Number: 8951-r.
• Citation: 34 N.W.2d 172,72 S.D. 332
• Parties: PEDERSON v. CANTON TP.
• Court: South Dakota Supreme Court

34 N.W.2d 172

72 S.D. 332

PEDERSON v. CANTON TP.

No. 8951-r.

Supreme Court of South Dakota

October 11, 1948

Henry C. Mundt, of Sioux Falls, for appellant.

Bogue & Masten, of Canton, for respondent.

ROBERTS Presiding Judge.

Plaintiff brought this action to recover judgment against defendant township for property damage alleged to have been sustained as a result of driving his automobile into a ditch extending across a highway intersection. Judgment was for plaintiff and this appeal followed.

Defendant answered the complaint by certain admissions and denials and pleaded affirmatively that the place where the accident occurred was one where the township was under no obligation to maintain a barrier or warning and that plaintiff was contributorily negligent. The court made among others these findings:

'That on the 18th day of September, 1944, plaintiff was operating and driving a motor vehicle upon a township highway located one mile west and one mile north of the city limits of the city of Canton, Lincoln County, South Dakota proceeding in a northerly direction thereon.

'That the highway extending north of the intersection * * * had been abandoned some years prior to the time plaintiff was driving his motor vehicle as aforesaid. That some years prior to that time, the said section line extending north of said intersection had been occasionally used by vehicles, at which time there was a culvert or bridge across a ditch running along the north side of the east and west highway at said intersection. That said bridge and culvert had also been abandoned at the time plaintiff was driving his vehicle as aforesaid.

'That defendant had no guards across such highway of any kind or character to guard the public from accident or injury.

'That plaintiff approached said intersection as aforesaid after dark, at about 9:30 P.M., at which time he was traveling approximately 25 to 30 miles per hour. That he had a clear vision of the road until he was close to the intersection, at which time it was lightning, and the lightning blinded him. That he intended to turn to the right at said intersection but because of being blinded, he attempted to go straight ahead. That his car plunged into the ditch on the north side of the east and west highway, headed straight north. That at the time the car plunged into said ditch, plaintiff was traveling at a very slow speed, as he was attempting to stop.'

The followed the court's conclusions of law, to wit:

'That it was the duty of the defendant, Canton Township, to erect for the protection of travel and public safety substantial guards over and across such abandoned culvert and highway of sufficient height, width and strength to guard the public from accident or injury, and that plaintiff was rightfully traveling said highway and entitled to the protection as aforesaid; and that the failure on the part of the said defendant, Canton Township, to so protect this plaintiff is the proximate cause of the damages suffered by the plaintiff.

'That there was no negligence on the part of the plaintiff in the operation and driving of his motor vehicle which contributed to or was the proximate cause of the damages sustained by him.'

The highway through the intersection along the east and west section line and the highway to the south are improved and well traveled. There is no dispute as to the fact that the right of way north of the intersection has not been improved. Slightly more than a half mile north of the intersection, a creek runs along the section line and in order to make the right of way passable it would be necessary as claimed by township officials to construct three bridges. One Mr. Payne, owner of land adjoining such right of way, for his own convenience constructed over the ditch along the north side of the intersection a plank roadway or culvert. The evidence is beyond dispute that this structure and the right of way to the north were never maintained by the township. At least a part of the right of way was fenced off by woven wire along the north line of the intersection and there was a large red post in the fence line about half way across the intersection. Testimony before the trial court was introduced to the effect that this right of way furnished access or egress to an adjoining field, but was not used by the public generally. After removal or deterioration of the timbers over the north ditch of the intersection, so far as the record shows, the township erected no guard or barrier.

Plaintiff predicates his claim upon the provisions of SDC 28.0913 requiring a township board 'to guard any abandoned public highway, culvert, or bridge' and imposing liability for injuries resulting from the breach of such duty. A township in the construction and maintenance of highways acts in a governmental capacity and its liability...