Solberg v. Schlosser

• Decision Date: 18 June 1910
• Citation: 20 N.D. 307,127 N.W. 91
• Parties: SOLBERG v. SCHLOSSER.
• Court: North Dakota Supreme Court

20 N.D. 307

127 N.W. 91

SOLBERG

v.SCHLOSSER.

Supreme Court of North Dakota.

May 14, 1910.

Rehearing Denied June 18, 1910.

Syllabus by the Court.

It is not negligence, as a matter of law, for a person to drive upon a dangerous or defective highway, knowing it to be such, unless the dangerous or defective condition is such that a person of ordinary prudence would not attempt to drive over it.

Knowledge of the dangerous condition of a highway, however, imposes a duty upon a traveler to exercise such care as the circumstances demand.

In case of conflict in the evidence as to the condition of a highway at a point where it is claimed to have been dangerous for travel, it is a question for the jury to determine whether it was dangerous or not.

Where the evidence is such that different persons may reasonably reach different conclusions, the question of the negligence of the defendant and of the contributory negligence of the plaintiff is for the jury.

The complaint considered, and held to set forth a cause of action for a violation of a duty not to render a highway dangerous by placing and leaving dirt thereon in a negligent manner, and not to state a cause of action on a breach of contract.

A person contracting with a drainage board to construct a drain under plans and specifications where he has sole control of the work, and the board has no control or superintendence thereof, is an independent contractor, and not the agent of the board.

Any person who wrongfully renders a public highway dangerous for travel by placing obstructions thereon must respond in damages to any one injured in consequence of such obstruction.

Appeal from District Court, Trail County; Pollock, Judge.

Action by Edward Solberg against George Schlosser. Judgment for plaintiff, and defendant appeals. Affirmed.Skulason & Burtness, for appellant. P. G. Swenson, for respondent.

MORGAN, C. J.

Action for damages caused by defects in a highway through the alleged negligence of the defendant. The controlling facts are included in the following summary: In October and November, 1907, the defendant was engaged in constructing a drain in Trail county, under a contract with the county drainage board of said county. The drain was to be constructed in accordance with plans and specifications which were made a part of the contract. The drain extended nearly north and south, and intersected a highway running east and west at the point where the injury occurred. At the point of intersection with the highway a bridge had been built over the drain by the public authorities. The drain was about 11 feet deep at the bridge. The dirt from excavating the drain was dumped on the highway. The dirt was dumped on the highway at the east approach to the bridge, and to about 45 feet from the bridge.

The allegation of the complaint in reference to the condition of the highway at this point is as follows: “That between the 20th day of October, 1907, and the 10th day of November, 1907, the defendant, while engaged in excavating said ditch or drain, placed and deposited a large quantity of dirt scraped out of said ditch, in the roadbed of the public highway running east and west between said sections 5 and 8, and at a point where said highway crosses the said ditch near the southwest corner of section 5, in said township and range; that the defendant wholly failed and neglected to level down said dirt so placed in the roadbed of said highway, but left the same in an extremely rough and uneven condition, the dirt being deposited in mounds which had frozen solid, leaving depressions and holes in said road which rendered said public highway extremely unsafe and dangerous for public travel; that the defendant carelessly and negligently allowed the said dirt to remain in said highway and in that portion thereof used by the public in traveling, without leveling or smoothing down the same; that the depressions or holes in said highway made by depositing dirt from said ditch were from 12 to 18 inches in depth, and the said highway at said point was carelessly and negligently allowed by defendant to remain in said condition, causing the said highway at that point to be dangerous and unsafe for public travel.” The complaint further alleges that on the 23d day of November, 1907, the plaintiff was driving along said highway in the exercise of due care, and was driving in the ordinary way, at a slow speed, and, while driving in that manner, one of the wheels of said wagon ran into a depression in said highway and partially overturned said wagon, and the plaintiff was thrown to the ground and injured, and was damaged in the sum of $5,000.

The answer is, in effect, a general denial. The issues were submitted to a jury, and a verdict was found in favor of the plaintiff for the sum of $1,000 and interest from the date of the injury. A motion for a new trial was made and denied. Judgment was entered on the verdict. The defendant appeals from this judgment, and presents the following contentions as a basis for the reversal of the judgment: (1) No privity of contract existed between the plaintiff and the defendant, therefore no duty was imposed upon the defendant to place the highway in proper condition. (2) The drainage board would not be liable for damages, as it was engaged in the performance of work of a public nature, as a state agency, therefore the defendant would not be liable for damages while engaged in that work as the agent of the drainage board. (3) The evidence fails to show that the highway was unsafe at that particular place at the time of the injury, and fails to show that the defendant ever caused it to become unsafe or dangerous for travelers. (4) The defendant was under no duty or obligation to keep the road in proper condition for travel, and his acts were not the proximate cause of the injury, and at most only the remote cause. (5) The plaintiff was guilty of negligence that contributed to the injury. No exception was taken to the instructions to the jury, nor to the admission or rejection of evidence. The appellant's contentions are that the evidence does not justify a judgment in plaintiff's favor for the foregoing reasons. We will consider these questions in the order named.

The defendant claims that the action is one for damages growing out of a breach of a contract between the defendant and the drainage board, and that damages growing out of the failure on defendant's part to comply with the contract cannot be recovered by the plaintiff, as he was not a party to that contract. In other words, no privity of contract existed between the plaintiff and the defendant.

We do not agree with the defendant's contention as to the cause of action set forth in the complaint. It is not a cause of action for damages growing out of a breach of contract. It is one for damages growing out of the defendant's tort in rendering the highway dangerous through his negligence in leaving the dirt thereon in piles and not leveled off. The contract is not set forth in the complaint nor mentioned therein. It was not offered in evidence by the plaintiff, but by the defendant. It is true, the complaint contains an allegation to the effect “that, in doing the work of excavating the said ditch or drain at the time hereinafter mentioned, the defendant placed and deposited a portion of the dirt taken from said ditch or drain in the roadbed of the public highway running east and west along the section line between sections 5 and 8, in said township and range; that it was defendant's duty, when such dirt had been placed in the roadbed of the said highway, to level down the dirt so placed there so as to make a smooth and good road for public travel.” Defendant contends that this clause shows that plaintiff claims damages for a breach of duty under the contract. We do not think that this contentioncan be upheld. There is no other fact or conclusion alleged in the complaint from which the inference that this refers to a duty arising from the contract can be drawn. The statement that defendant owed a duty to level the dirt after placing it on the highway harmonizes with what is a legal duty devolving upon every one not to obstruct or make the highway dangerous for travel. From the whole complaint, our conclusion is that the duty mentioned in this allegation of the complaint refers to a duty imposed by law, and not to the contract referred to in the evidence. Defendant relies upon Styles v. F. R. Long Co., 67 N. J. Law, 413, 51 Atl. 710, as sustaining his contention in this regard. In that case it was held that the plaintiff was not entitled to bring the action for damages under the contract between the defendant and the board of chosen freeholders of the county of Passaic. In that case the following statement of the law in Appleby v. State, 45 N. J. Law, 165, was approved: “A duty, the breach of which is an actionable wrong, may arise from a contract, or be imposed by positive law, independent of contract. In the first case, the party to the contract only can sue; in the other case, any person injured may sue if he be one of the class of persons for whose benefit the duty is imposed.”

The same principle was subsequently announced by the same court in the same case, reported in 70 N. J. Law, 301, 57 Atl. 448. This case is, therefore, not in point, as the cause of action was based upon a contract alone. In this case, although there...