State v. Urbanek

• Decision Date: 05 May 1970
• Docket Number: No. 53858,53858
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellant, v. Donald URBANEK, Appellee.

Page 14

177 N.W.2d 14

STATE of Iowa, Appellant, v. Donald URBANEK, Appellee.

No. 53858.

Supreme Court of Iowa.

May 5, 1970.

Reynolds, Kenline, Roedell, Breitbach & McCarthy, Dubuque, for appellant.

O'Connor, Thomas, Wright, Hammer & Bertsch, Dubuque, for appellee.

REES, Justice.

Appellant, State of Iowa, brought action to recover for property damage to its bridge on U.S. Highway No. 61 in Zwingle, Iowa, as consequence of appellee's truck colliding with bridge. This cause was tried to a jury. Appellee's motion to direct made at close of plaintiff's case was sustained, and appellant's motion for new trial was overruled. We affirm.

Three witnesses were called and examined by appellant, the deputy sheriff who investigated the accident, the resident maintenance engineer for the Iowa highway commission, and the appellee called by the appellant as an adverse witness. The deputy sheriff testified as to observations made by him at the accident scene on July 8, 1965. The appellee testified as to certain of the facts and circumstances immediately prior to and at the time of the happening of the accident and identified certain photographs introduced as exhibits. The engineer for the Iowa highway commission testified that shortly after the 8th day of July, 1965, the date on which the accident occurred, he inspected the bridge in question, and determined that both immediate temporary repairs were needed to keep the bridge in service and that permanent repairs would be required before it could be opened to regular traffic. He testified the temporary repairs were made at a total cost of $1512.03. He further testified the permanent repairs were made by a contractor at a cost of $5400.00, and based upon his experience as an engineer the cost of making the temporary repairs was fair and reasonable. He did not so testify with respect to the contract price for the making of the permanent repairs. Later, in his testimony he indicated the cost of making the temporary repairs included the cost of certain signs in the amount of $336.20, which could have been used again, and it was then conceded by counsel for appellant the sign cost should not be submitted to the jury, and the cost of temporary repairs was thereby reduced to the sum of $1175.83.

There was no proof of the value of the bridge immediately before the damage to it, nor immediately after, nor was any proof offered that the repairs made merely restored the property to its former condition immediately before the accident. At the close of plaintiff's case, the appellee moved for dismissal or a directed verdict under the provisions of Rule 216, Rules of Civil Procedure, on the grounds (1) plaintiff had failed to prove the elements of its case by a preponderance of the evidence, (2) there was no evidence in the record of the condition of the bridge or its value prior to the accident, and the proper measure of damages is the fair and reasonable value of the cost of repairs to place the bridge in the condition it was in immediately prior to the accident, but not to exceed the value of the bridge, and there was no evidence in the record of the condition of the bridge prior to the accident, (3) if the cost of repairs is equal to or greater than the value of the bridge prior to the accident, then the amount recoverable is the value of the bridge, and the record disclosed nothing as to the value of the bridge and there had been no competent evidence that it would cost less to repair the bridge than to replace it with a new bridge, and (4) there was no competent evidence showing the repairs that were reportedly made were necessary as the result of the accident of July 8, 1965, or the damage to the bridge was caused by the truck operated by the appellee. The court overruled appellee's motion and the appellee proceeded to introduce evidence. After the appellee had testified and had been excused from the witness stand, the court indicated to counsel he would reconsider the motion to direct or to dismiss dictated into the record and sustained the motion on the first three grounds thereof. Appellant moved for a new trial, asserting (1) the verdict was contrary to law, (2) the court erred in directing a verdict against the appellant, and (3) the appellant had sustained its burden of proof in regard to the elements of damage in the case. The motion for new trial was overruled as to each and every ground thereof.

The appellant advances two propositions to justify a reversal: the proper measure of damages in a situation a structure such as a bridge is the cost of restoring it to its condition prior to the accident, and secondly, if property has no market value the actual or intrinsic value thereof may be shown by any facts which fairly tend to show such value.

In explanation of the omission in its proof as to the value of the bridge, either before or after the happening of the accident, the appellant says highway bridges have no market value, or had no market value at the time and place of the accident. This point may be conceded, but without relation to the issue of value; if appellee was unable to prove either market value or actual value, it was required to show at least the repairs did not restore the property to a better condition than it was before the accident. Union City Transfer Co. v. Texas & N.O. Ry. Co., Tex.Civ.App., 55 S.W.2d 637, 638. While the reasonable cost of repairs is always admissible on the question of damages, yet as the repairs may render the damaged property more valuable than it was before the injury, he who causes the injury is not required to bear the full expenditure for the repairs, but is only liable for the difference in the market price of the article before and after the injury. Robson v. Zumstein Taxicab Co., 198 Ky. 365, 248 S.W. 872, 873.

The bridge in question was admittedly a structure which had been in use for many years; the evidence tended to establish it may have been built as early as 1917, and reconstructed about 1930 or thereafter. It was of a type known as a pony-truss bridge and was 17 feet one inch in width. At the time of the trial in the court below, the bridge was no longer in existence as it had been replaced by a new structure as a result of a relocation of the highway. It is the contention of the appellant that even if the court should require the value of the bridge before the accident be established in order to entitle appellant to recover, there is sufficient evidence in the record for the jury as a trier of fact to find such value. Appellant contends that because of the fact the resident engineer for the highway commission testified the bridge had a 17 foot paved runway with a walk along one side, and was built some time between 1917 and 1930, was a part of the primary road system and an integral part of a U.S. highway, and pictures of the damaged bridge were in the record, the jury from such established facts was in a position to fix a value of the bridge prior to the happening of the accident. We cannot agree with the position of the appellant. This court has not had occasion heretofore to inquire into the matter of the measure of damages for bridges which had been destroyed or partially damaged as...