Smith v. Zimmer

• Decision Date: 29 May 1912
• Citation: 45 Mont. 282
• Parties: SMITH v. ZIMMER et al.
• Court: Montana Supreme Court

45 Mont. 282

SMITH

v.ZIMMER et al.

Supreme Court of Montana.

March 4, 1912.

On Rehearing, May 29, 1912.

Appeal from District Court, Lewis & Clark County; J. Miller Smith, Judge.

Action by G. W. Smith against Henry Zimmer, supervisor of the Augusta Road District in Lewis and Clark county, and Joseph J. Hindson and others, county commissioners of Lewis and Clark county. Judgment for defendants, and plaintiff appeals. Reversed as to defendant Zimmer, and affirmed as to defendants Hindson and others.

Action for damages for a personal injury. During the year 1909 and up to the time this action was commenced, the defendants Hindson, Richardson, and one Moses F. Root were the commissioners of Lewis & Clark county. Moses F. Root, made one of the original defendants herein, died before the trial, and defendant W. F. Root, the administrator upon his estate, was substituted in his stead. Defendant Zimmer was the supervisor of the Augusta road district in Lewis & Clark county. The complaint alleges that it was the duty of the defendant Zimmer to see that the public roads in the Augusta district were kept in a reasonable state of repair, and, in case any of them became dangerous or impassable from any cause, to restore them by repairing the defects therein, and in the meantime, and until any defect was remedied, to advise the public of its existence; that it was the duty of the defendants Hindson, Richardson, and Root, as commissioners of the county, to see that defendant Zimmer discharged the duties named, and, in case he failed to perform them, to cause all reasonable and necessary repairs to be made, and in the meantime to advise the public of the existing conditions; that at the times herein mentioned there was maintained in the district a public road leading from the town of Augusta south to, across, and beyond Elk creek; that early in the month of June, 1909, a washout occurred at a culvert on the road near the crossing over Elk creek which rendered it impassable and dangerous; that this defective condition was permitted to remain until the time of the accident; that Zimmer knew of it but failed and neglected to remedy it or to advise the public by posting or causing notices to be posted at or near the place, or by any other means; that the defendants Hindson, Richardson, and Root, though advised that the condition was dangerous, and though they knew that defendant Zimmer was derelict in his duty in the premises, failed and neglected to take any steps to have necessary repairs made or to give notice or warning to the public by posting notices or otherwise; and that the defect was a public nuisance of which defendants had notice. It is then alleged that on October 11, 1909, the plaintiff, while driving his wagon along the road, being without knowledge or warning of the defect therein and it being so dark that he could not see, was precipitated into said washout, whereby he sustained injuries rendering him permanently crippled and lame.

The defendants Hindson, Richardson, and Root, after admitting that they were commissioners as alleged, deny specifically all the allegations in the complaint. They then allege several affirmative defenses among which are the following: (1) That plaintiff was guilty of contributory negligence; (2) that the defect in the highway was being repaired as rapidly as possible, that all the highways in the county at the time of the accident were in a greatly damaged condition, and that plaintiff knew of the defect by which he was injured; (3) that at all the times mentioned the defendants were acting in their official capacity as county commissioners and were proceeding in good faith in the honest discharge of all their duties, and particularly with reference to the road upon which plaintiff was injured. The answer of Zimmer is substantially the same except that as an additional defense he alleges that the board of commissioners had not made any appropriation of funds for the repair of the roads in his district to cover a later date than May 31, 1909, and that all appropriations made for such repairs had been exhausted long before the date of the accident. There was issue by reply.

At the close of plaintiff's evidence the defendantcommissioners and Zimmer interposed separate motions for nonsuit, both of which enumerated the grounds (1) that the evidence fails to show that any of the defendants owed a legal duty to plaintiff; (2) that it fails to show that the defendants had notice of the defect in the road; (3) that it fails to show that the road is a public highway; (4) that it affirmatively shows contributory negligence upon the part of plaintiff. The motion of defendant Zimmer included the additional ground: (5) That the evidence fails to show that there were funds available with which to repair the roads in his district. The court sustained the motion generally and rendered judgment for the defendants. The appeal is from the judgment.

Walsh & Nolan, of Helena, for appellant. O. W. McConnell, of Helena, for respondents.

BRANTLY, C. J. (after stating the facts as above).

The evidence discloses the following: The accident occurred on October 11, 1909, near the point where the road crosses Elk creek by a steel or iron bridge. As it approaches the bridge, the road extends along the shore of the stream only a few feet away. It is upon a grade two and a half or three feet above the level of the natural surface. At the bridge it turns at a right angle. In the grade was a culvert constructed so as to allow the passage of water into Elk creek through a coulee which the road crosses. On the side toward the stream between the culvert and the bridge, the grade, except a small portion about three feet in width, had been undermined and washed away by high water in the latter part of the preceding June, leaving a cut bank and an excavation several feet in depth. At the time of the accident this excavation was filled with water. In the morning plaintiff had gone to Augusta traveling over a cut-off road through the country. He left there about dark taking the county road because, as he said, he deemed it safer. He knew that there had been high water early a in the year and that the roads in some places had been washed out, but had no knowledge of any washout on this road. The night was so dark that he could not see. He trusted to his team which consisted of old and gentle horses to follow the road. When the horses passed the culvert and reached the excavation they plunged into it, partially overturning the wagon into the water. He was much frightened by the suddenness of the accident and, being unable to see, could not tell what further danger was impending. He was under the impression that the horses in their plunging would completely overturn the wagon and pin him down in the water. As he struggled in the water to escape the plunging horses and to extricate himself, his foot was caught and held fast in the “comb” of the wagon brake. He finally succeeded in releasing the horses by cutting the traces with his pocket knife; but in the struggle to avoid injury from them and afterwards to release his foot, which he finally did by cutting off his shoe, his ankle was bruised and wrenched, with the result that he has become permanently lame.

There is little direct testimony tending to show that any of the defendants had actual notice of the condition of the road, but it is not controverted that the washout had occurred in the month of June and that no attempt had been made to repair the defect or remove the obstruction caused by it. It appears that the road is an old and regularly traveled road having been used as such for many years, the plaintiff stating that he had known and traveled it for 39 years; that it had been repaired at times by the supervisor of the district; and that, as already noted, it crosses Elk creek by an iron bridge. It appears also that there is a record and map of it among those of the county roads kept in the office of the county clerk.

Passing, for the moment, the question whether upon the facts disclosed there arose a liability on the part of the defendants or any of them for an injury resulting from their failure to discharge a duty enjoined upon them by law, the motion for a nonsuit should not have been sustained upon any of the four other grounds enumerated. Upon the assumption that it was the imperative duty of the defendants under the law, without reference to their rank of office, to keep the roads of the county in a reasonably safe condition, they were under an obligation equally imperative to exercise reasonable care to inspect them from time to time to ascertain their condition in order that they might perform this duty, for it would be absurd to say that they owed a duty to the public generally and to the private citizen personally by reason of their official position, but that they were under no obligation to ascertain when action on their part was required, or that they were not obliged to act until they had received personal notice of a condition calling for action. An equivalent proposition would be to assert that, though these officers have exclusive control and supervision over the county roads with the incidental but imperative duty to keep them in reasonably safe condition, they are not required to repair until they are requested to do so. If they are liable at all, the rule of reasonable diligence applicable to municipalities applies to them, viz., that when the defect has existed for such a length of time and under such circumstances that the municipality or its officers, in the exercise of reasonable care and diligence, ought to have obtained knowledge of it, notice will be presumed. Leonard v. City of Butte, 25 Mont. 410, 65 Pac. 425; Elliott on Roads and Streets, § 626. The evidence on this branch of the case was sufficient to require it to be submitted to the jury.

The evidence was also sufficient to go to the jury upon the question whether...