State ex rel. McKinney v. Richardson

• Decision Date: 17 November 1954
• Docket Number: No. 7979,7979
• Citation: 76 Idaho 9,277 P.2d 272
• Parties: The STATE of Idaho, on relation of Jno. R. McKINNEY, Commissioner of Highways for the State of Idaho, Plaintiff-Appellant, v. Joe RICHARDSON, doing business under the trade name of Riverside Lumber Company, and Harry Sanders, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 272

277 P.2d 272

76 Idaho 9

The STATE of Idaho, on relation of Jno. R. McKINNEY, Commissioner of Highways for the State of Idaho, Plaintiff-Appellant, v.Joe RICHARDSON, doing business under the trade name of Riverside Lumber Company, and Harry Sanders, Defendants-Respondents.

No. 7979.

Supreme Court of Idaho.

Nov. 17, 1954.

As Modified on Denial of Petitions for Rehearing Dec. 20, 1954.

Robert E. Smylie, Atty. Gen., Allan G. Shepard, J. R. Smead, Asst. Attys.Gen., for appellant.

Cox, Ware & Stellmon, Lewiston, Swayne & McNichols, Orofino, for respondent Richardson.

Paul W. Hyatt, Lewiston, for respondent Sanders.

TAYLOR, Justice.

As a part of its highway system the state owns and maintains a bridge across the Clearwater River at Greer in Clearwater County.The bridge is of steel construction and consists of two spans.Before the damage occurred the one span was 235 feet long and the other 100 feet.The adjoining end of each span rested upon a concrete pier erected in the river channel.On November 10, 1949, the defendant Sanders, an employee of the defendantJoe Richardson, driving a truck upon which was loaded a caterpillar tractor with bulldozer equipment attached, both belonging to Richardson, attempted to cross the river on this bridge.After he had passed over the long span and had entered upon the first half of the short span, the short span collapsed and fell to the river bed.The state cleared away the fallen span, replaced it with a temporary structure to accommodate the traffic in the meantime, and thereafter replaced it with a permanent structure.In September, 1950, the then commissioner of public works, as authorized by statute, § 49-607, I.C., brought this action on behalf of the state to recover the damages sustained.In the complaint it is alleged that the total weight of the truck and load was 51,560 pounds; that at the time the gross load limit fixed by law for the bridge was 30,000 pounds; that a sign was posted on the bridge in compliance with the law, warning the public that the gross load limit of the bridge was 30,000 pounds.The complaint also alleges that the bulldozer was so placed upon the truck, and transported in such manner, that the upright arms of the bulldozer extended to such a height that they contacted a crossbeam of the bridge, causing great shock and strain, as a result of which the bridge was knocked and moved out of place and off its pier.These acts on the part of the defendants in driving on the bridge with a load weight in excess of the posted limit, and permitting the load to come in contact with the cross member of the bridge, are alleged to be acts of negligence and the proximate cause of the injury to the bridge.

The defendants answering separately admit Richardson's ownership of the truck; that it was being operated by Sanders, as an employee of Richardson, and that a portion of the bridge collapsed; and deny generally the negligence alleged by plaintiff.In defense they allege that the collapse was due to negligence of the plaintiff in permitting the pier under the bridge to 'become dilapidated, weakened, disintegrated, dangerous, and out of repair'; that the weakened condition of the bridge was the result of negligence on the part of the plaintiff, and was the proximate cause, or a contributing proximate cause, of the collapse of the structure.

The fixing of the weight limit for the bridge appears to have been done under authority of § 49-606, I.C.This section authorizes the commissioner of public works to make regulations reducing permissible sizes, weights, or speeds of vehicles on a 'highway or section of state highway' when in his judgment the operation of vehicles of sizes, weights and speeds otherwise permissible with cause damage 'or will interfere with the safe and efficient use of such highway by the traveling public'.The section further requires the commissioner to 'erect and maintain signs designating such regulations at each end of such highway or section'.'Highways' are defined to include bridges.§§ 40-101,40-402, I.C.(now § 40-107, I.C.).

There is practically no dispute in the evidence that notice of the load limit for this bridge was properly posted.In fact, photographic exhibits introduced by the defendants clearly show the posting over the portal through which defendants' truck entered upon the bridge, and photographs introduced by the plaintiff show the posting over the fallen portal.No witness testified that it was not so posted; the defendant Sanders testified merely that he did not see the sign; that he knew there was a limit on the bridge but did not know what it was.Under the circumstances he is charged with notice of the limitation.

The statutory authority for this action is § 49-607, I.C., as follows:

'Anything to the contrary herein notwithstanding, the owner and the operator, driver or mover of any vehicle, object or contrivance over a public highway or bridge, shall be jointly and severally responsible for all damages which said highway or bridge may sustain as the result of illegally operating or driving or moving such vehicle, object or contrivance, or as the result of driving or moving any vehicle, object or contrivance weighing in excess of the maximum weight specified in this chapter, but authorized by a temporary permit, and the amount of such damages may be recovered in an action at law by the authorities in control of such highway or bridge.'(1953amendmentomitted.)

Section 49-609, of Chapter 6, Title 49, I.C., makes it a misdemeanor to violate any of the provisions of the chapter.In State v. Heitz, 72 Idaho 107, 238 P.2d 439, this court upheld a conviction for the violation of a weight limitation promulgated and posted by the commissioner of public works under authority of § 49-606, I.C.That case places the violation of a lawful regulation, made by the commissioner of public works, on a par with the violation of a regulation made by statute.

It is settled that violation of a statutory inhibition is negligence per se.Brixey v. Craig, 49 Idaho 319, 288 P. 152;Carron v. Guido, 54 Idaho 494, 33 P.2d 345;Hobbs v. Union Pacific R. Co., 62 Idaho 58, 108 P.2d 841;Pittman v. Sather, 68 Idaho 29, 188 P.2d 600;Ineas v. Union Pac. R. Co., 72 Idaho 390, 241 P.2d 1178;65 C.J.S., Negligence, § 19c.(2).

In some cases such a violation may be justifiable or excusable, but to be justified or excused the violation must arise out of circumstances beyond the control of the violator.The rule is stated in C.J.S., as follows:

'Prudence may sometimes require the doing of an act which would otherwise be in violation of law, and, even though an act or omission involves a violation of a statute or ordinance, liability may, in some cases, be avoided by showing that under the circumstances of the particular case the violation was justifiable or excusable; but the fact which will excuse a technical violation must result from causes or things beyond the control of the person charged with the violation.'

65 C.J.S., Negligence, § 19 h., p. 426.

In Berkovitz v. American River Gravel Co., 191 Cal. 195, 215 P. 675, at page 677, the Supreme Court of California thus stated the rule:

'Violation of an ordinance 'is presumptively an act of negligence and conclusively so until rebutted by evidence that it was justifiable or excusable under the circumstances.'[Citations.]'

And it was held that the defendant driver was excusable if he had checked his rear lamp three or four blocks back shortly before the collision and found it lighted, even though it were not lighted at the time of the collision.Subsequent California cases adhering to the rule are as follows: Leiner v. Eng-Skell Co., 104 Cal.App. 228, 285 P. 905;Gallichotte v. California Mutual, etc., Ass'n, 4 Cal.App.2d 503, 41 P.2d 349;Baldridge v. Cunningham, 31 Cal.App.2d 128, 87 P.2d 369;Kuehn v. Lowthian, 124 Cal.App.2d 867, 269 P.2d 666.The California cases are collected and some of them commented upon by the Supreme Court of that state in Satterlee v. Orange Glenn School District, 29 Cal.2d 581, 177 P.2d 279.In the Gallichottecase, supra, it was held that:

'Burning of grass and weeds on vacant lot in violation of ordinance, resulting in destruction of property on adjoining land, was conclusively presumed negligent, though more than ordinary precaution was exercised in protecting adjoining property before starting fire and in attending fire to prevent spread to other property, where violation of ordinance was deliberate and not result of cause beyond defendants' control.'Syl. No. 3, 41 P.2d at page 350.

In a later case, Carlson v. Shewalter, 110 Cal.App.2d 655, 243 P.2d 549, the district court of appeal held:

'The fact which will excuse a statute violation, which would otherwise make violator liable for injuries resulting therefrom, is one resulting from causes or things beyond the control of the violator and mere ignorance of the law is not such a fact.'Syl. No. 4, 243 P.2d at page 549.

In Jess v. McNamer, 42 Wash.2d 466, 255 P.2d 902, the violation charged was the failure of the driver to place warning devices upon the highway to warn other drivers of the presence of his stalled truck thereon.After referring to the general rule, the Supreme Court of Washington said:

'This rule is not applicable in the instant case because here the violation was not due to some cause beyond the violator's control, nor was it a violation against which reasonable prudence could not have guarded.The failure to place warning devices on the roadway was due to appellant's violation of statute and lack of prudence in failing to carry such devices in his truck.The fact that, after appellant negligently created the risk, he exerted every effort to overcome the hazard, does not operate to cleanse the original act of its negligent character.'Jess v. McNamer, 42 Wash.2d 466, 255 P.2d 902, at page 904.

Although the point is not before us, since it may arise upon the new...