Snethen v. Harrison County

• Decision Date: 08 April 1915
• Docket Number: 29834,29835
• Citation: 152 N.W. 12,172 Iowa 81
• Parties: BERTHA SNETHEN, ADMX., Appellant, v. HARRISON COUNTY et al., Appellees
• Court: Iowa Supreme Court

152 N.W. 12

172 Iowa 81

BERTHA SNETHEN, ADMX., Appellant, v. HARRISON COUNTY et al., Appellees

No. 29834, 29835

Supreme Court of Iowa, Des Moines

April 8, 1915

REHEARING DENIED TUESDAY, OCTOBER 5, 1915.

Appeal from Harrison District Court.--HON. THOMAS ARTHUR, Judge.

ACTION at law to recover damages for the death of one Dell Hardy due to the defective condition of a county highway in the defendant county. The defendants are the county and the individual members of its board of supervisors. The defendants demurred to the petition and, their demurrers having been sustained, plaintiff elected to stand upon her petition, and judgment was rendered against her for costs. She appeals.

Affirmed.

McKenzie & Cox and Tinley, Mitchell & Pryor, for appellant.

Ross McLaughlin and Roadifer & Roadifer, for appellees.

DEEMER C. J. EVANS, PRESTON, and SALINGER, JJ., concur.

OPINION

DEEMER, C. J.

I.

Plaintiff claims that a defect existed in one of the highways of defendant county, over which its board of supervisors had assumed jurisdiction under the new road law, as a part of the county road system; that this defect consisted in the washing out of a fill in a ravine, which was crossed by the highway, which washout the defendant county was attempting to obviate by the establishment of a new highway. This new highway was acquired by consent, and as it crossed the ravine hitherto mentioned, it was necessary to construct a bridge over it. The county entered upon the new highway and proceeded to grade the same by day labor and to construct a temporary bridge over the ravine.

Plaintiff alleged that the defendants, and each of them, carelessly and negligently improved and constructed that portion of the said county road so that there was nothing on the surface of the ground between the said sharp curve and the banks of the said ditch to indicate to the traveler that he had left the road and was on the ground between the road and said ditch; that defendants negligently constructed the said road up to within twenty feet of the bank of said ditch and then caused the same to turn sharply to the south and run along the bank of said ditch to the said temporary bridge, and, after crossing the said bridge, to run along the opposite bank of said ditch in a northerly direction, when a sharp curve was again made directly opposite the point where the aforementioned sharp curve was made; that the said defendants, and each of them, negligently and carelessly opened the said road for travel before the completion of a permanent bridge across the said ditch; that the said defendants, and each of them, negligently constructed the said bridge off of and to the south of the said road "at a point about feet to the south thereof"; that the said defendants, and each of them, negligently failed and refused to construct any obstruction at said curve to prevent travelers running off said road and into said ditch; that they negligently failed and refused to construct any guard or signal to indicate to travelers along said road the position of the said ditch, the location of the said temporary bridge, or the dangerous condition of the said road; that the said defendants, and each of them, negligently failed to erect any guards along the banks of said ditch and between the road and the said ditch.

Plaintiff further alleges that, long prior to the 16th day of August, 1913, the above named individual defendants, and each of them, were orally warned, as aforesaid, that, unless some obstruction, guard or signal was erected in said road at said point, there was a likelihood that travelers along the said road would be precipitated into said ditch and either injured or killed; but that, notwithstanding the said warning, the said defendants, and each of them, negligently failed and refused to provide any obstruction, guard, or signal whatsoever for the protection of travelers along said road, as aforesaid, and negligently failed and refused to provide any obstruction or warning of any character to indicate the location of said ditch or of said temporary bridge; that no written notice of the dangerous condition of the said road, as aforesaid, was given to any of the above named defendants. It is further alleged that plaintiff's intestate, who was in an automobile driven by one Clifford Townsend, was injured and afterward died as a result of the driver's running his machine into the said open ditch, without any fault or negligence on his part.

The demurrer challenges the liability of the county under this state of facts and it is frankly conceded that, unless our new road law imposes liability upon the county either expressly or by fair implication, there can be no recovery. Counties, unlike cities and incorporated towns, are not, as a rule, held liable for torts committed by them, so long as they are acting within the scope of their governmental powers. They are quasi-municipal corporations engaged in the performance of governmental functions, and are not responsible for the neglect of duties enjoined upon them, in the absence of statute giving a right of action. Kincaid v. Hardin County, 53 Iowa 430, 5 N.W. 589; Wilson v. Jefferson County, 13 Iowa 181; Wilson v. Wapello County, 129 Iowa 77, 84, 105 N.W. 363; Green v. Harrison County, 61 Iowa 311, 16 N.W. 136; Packard v. Voltz, 94 Iowa 277, 62 N.W. 757; Wenck v. Carroll County, 140 Iowa 558, 118 N.W. 900; Wood v. Boone...