Reaney v. Union County

• Decision Date: 20 August 1943
• Docket Number: 8633.
• Citation: 10 N.W.2d 762,69 S.D. 392
• Parties: REANEY v. UNION COUNTY.
• Court: South Dakota Supreme Court

10 N.W.2d 762

69 S.D. 392

REANEY v. UNION COUNTY.

No. 8633.

Supreme Court of South Dakota

August 20, 1943

Rehearing Granted Oct. 6, 1943.

Danforth & Danforth, of Sioux Falls, for appellant.

Clifford C. Oden and O. C. Donley, both of Elk Point, for respondent.

SMITH, Judge.

Plaintiff claims damages from the county under SDC 28.0913 for severe injuries received while riding as a passenger in an automobile over the county highway system. While traveling at a speed of about twenty miles an hour the car was precipitated through the guard rail of a wooden approach to a steel bridge which spans the Big Sioux in the vicinity of Elk Point. Darkness and sifting snow limited the visibility at the time of the accident. An insubstantial guard rail and a sharp left hand curve leading immediately to a narrow wooden approach to the bridge rendered the highway dangerous and unsafe, according to the contentions of plaintiff. Error is predicated upon the ruling of the trial court granting the county's motion for a directed verdict.

Whether, in enacting SDC 28.0913, the legislature intended to abridge the liability of counties for injuries resulting from defects in the county highway system is the principal question presented by the appeal.

That a county is not liable under the common law for injuries to persons or property proximately caused by its negligent construction maintenance, or repair of a county highway, and that, prior to the 1939 revision, liability of a county for such negligence rested solely on the provisions of §§ 8589 and 8590, Rev.Code 1919, as amended by Ch. 167, Laws 1931, is conceded. See Robinson v. Minnehaha County, 65 S.D. 628, 277 N.W. 324. By § 8590 a county was rendered liable to any person who sustained injury to person or property by reason of the county's negligence in performing the duties described by § 8589, supra. By that section it was provided as follows: "Guards Erected-Repairs. It shall be the duty of the governing body of every city, incorporated town and of the board of county commissioners in the territory not included in any such city or town, to keep the public highways, culverts and bridges in such condition as to render them safe, passable and free from danger of accident or injury to persons or property while in the lawful use thereof, and 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 an extent as to endanger the safety of the public, it shall be the duty of such governing body or board, upon receiving notice thereof to cause to be erected for the protection of travel and public safety, within twenty-four hours thereafter substantial guards over such defect or across such highway of sufficient height, width and strength to warn and guard the public from accident or injury, and to repair the same within a reasonable time thereafter. It shall also be the duty of such governing body or board to guard any abandoned public highway, culvert or bridge as provided in this article."

These two sections of the Revised Code of 1919 were replaced by SDC 28.0913. The revised text reads as follows:

"Defective highways, bridges, culverts: duty of county, township, or municipality to guard and repair; action for damages by person injured. 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 an 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 twenty-four 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. It shall also be the duty of such governing body or board to guard any abandoned public highway, culvert, or bridge in like manner.

"Any person who shall sustain injury to person or property by reason of any violation of this section 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."

It will be observed that the revision omits the provision of §...