Strickfaden v. Green Creek Highway Dist.

Citation42 Idaho 738,248 P. 456
PartiesCHARLES H. STRICKFADEN et al., Respondents and Cross-appellants, v. GREENCREEK HIGHWAY DISTRICT et al., Appellants and Cross-respondents
Decision Date10 July 1926
CourtUnited States State Supreme Court of Idaho


1. "Counties" are legal political subdivisions of state created by sovereign power without solicitation or consent of people within territory affected, and are true public corporations.

2. "Cities," "towns," and "villages," are true municipal corporations, and in addition to exercise of functions of self-government transact matters of quasi private or public character.

3. "Highway districts," under C. S., sec. 1490 et seq., are quasi-municipal corporations, not created for purposes of government, but for purpose of improving highways within district.

4. In absence of express statute, state is not liable for damages either for nonperformance of its duties or for their improper exercise by those charged with execution.

5. Counties being involuntary subdivisions of state and being its agents are generally relieved from liability for damages for nonperformance of powers or improper exercise thereof, in absence of express statute.

6. In absence of liability under statute, municipal corporation while acting in public capacity as arm of state, is not liable for failure to exercise powers or for negligent exercise thereof.

7. Municipalities are liable for torts in performance of ministerial, private, corporate, or proprietary functions.

8. Municipality is generally bound to exercise ordinary care to keep streets in reasonably safe condition for use of public.

9. Municipalities are liable for negligent construction or maintenance of streets.

10. Highway districts, created under C. S., sec. 1490 et seq. are liable for their torts, in view of secs. 1505, 1658, 3929, 3396; and Const., art. 18, sec. 1, designating cities highway districts, and counties as bodies politic.

11. Instruction, in action for personal injuries received when automobile struck excavation on highway, relative to liability of district and director of highways for failure to maintain warning sign, held correct when considered with other instructions.

12. "Negligence" on part of highway district with respect to excavation in highway is failure to perform act or do thing which reasonably prudent person under like circumstances would do or perform.

13. What would be reasonable warning of excavation, is question of fact for jury, which should consider place, nature of road, and general situation.

14. Jury, in determining question of reasonable care, with respect to warnings of excavation, should consider kind of travel and probable speed of vehicles.

15. Automobile driver on public road has right to assume road was reasonably safe.

16. Instruction that it was not negligence to drive at statutory speed, in absence of warning of "danger ahead," is proper, in absence of allegation or proof of negligence, except with respect to speed.

17. Instruction responsive to allegations and evidence is not incorrect.

18. Highway officers are generally liable for injuries in consequence of malfeasance or nonfeasance in performance of ministerial duties.

19. Rule of respondent superior does not apply, where public officers are sought to be bound by negligence of subordinate officers, unless there was failure to exercise due care in selection or knowledge of negligent acts.

20. Highway district commissioners are not liable for injuries resulting from driving into excavation on highway, in absence of failure to exercise due care to secure competent director or actual knowledge of negligence in performance of work.

21. Highway district has duty of giving reasonable warning to public of excavation on highway, being made under its direction.

22. Verdict for personal injuries from driving into excavation on highway against highway district will not be set aside because of inconsistency with verdict exonerating highway director from liability.

23. Jury's verdict can be set aside on appeal only for want of substantial evidence to support particular verdict, and not because of its inconsistency with another verdict.

APPEAL from the District Court of the Tenth Judicial District for Idaho County. Hon. Miles S. Johnson, Judge.

Action for damages for personal injury. Judgment for plaintiff. Affirmed.

Verdict sustained and judgment affirmed. Costs awarded to respondents on the appeals of the highway district, and in favor of the highway district on the cross-appeal by respondents and cross-appellants.

F. E. Fogg, W. C. Arnold and H. Taylor, for Appellants.

The defendant highway district was engaged in the performance of a purely governmental state function, delegated to it by the state and is not liable in an action for damages for injuries resulting from negligence in the repair of its highways.

The highway district law expressly declares the improvement of highways to be an established state policy and clearly delegates the carrying out of such state purposes to highway districts. (C. S., secs. 1490, 1505, 1507.) See, also, as to general policy of the state respecting highways. (Sec. 1302.)

Maintenance and repair of highways is a governmental function. (Jensen v. Board of Supervisors, 47 Wis. 298, 2 N.W. 320; People v. Board of Supervisors, 20 Mich. 95; Milwaukee Co. v. Halsey, 149 Wis. 82, 136 N.W. 139; Youmans v. Thornton, 31 Idaho 10, 13, 168 P. 1141; Seidel v. Town of Woodbury, 81 Conn. 65, 70 A. 58.)

Agencies of the state are not liable for negligence. (Worden v. Witt, 4 Idaho 404, 95 Am. St. 70, 39 P. 1114; Davis v. Ada County, 5 Idaho 126, 95 Am. St. 166, 47 P. 93; Barnett v. Contra Costa, 67 Cal. 77, 7 P. 177; Youmans v. Thornton, supra; Uecker v. Town of Clyman, 137 Wis. 38, 118 N.W. 247.)

Highway districts are municipal corporations of limited power, created for the sole purpose of performing as agencies of the state the purely state function of construction and maintenance of highways. (C. S., secs. 1490, 1505, 1507.)

Cities and villages are not analogous to highway districts but are granted general powers of local self-government. (C. S., secs. 3794, 3939, 3948, 3949, 3960, 3962, 3976; Eikenberry v. Township of Bazaar, 22 Kan. 556, 31 Am. Rep. 198; 4 Dillon, Municipal Corporations, 1643; James v. Trustees of Wellston Tp., 18 Okla. 344, 11 Ann. Cas. 938, 88 P. 1052, 90 P. 100, 13 L. R. A., N. S., 1219.)

No distinction between malfeasance and nonfeasance is applicable. (Weltsch v. Stark, 65 Minn. 5, 67 N.W. 648; Crowder v. Emery, 206 Ill.App. 562; Nagle v. Wakey, 161 Ill. 387, 43 N.E. 1079; Richardson v. Belknap, 73 Colo. 52, 213 P. 335.)

As to erroneous instructions, plaintiff's negligence, see: West Const. Co. v. White, 130 Tenn. 520, 172 S.W. 301; Lawson v. Fond Du Lac, 141 Wis. 57, 135 Am. St. 30, 123 N.W. 629, 25 L. R. A., N. S., 40; Ham v. Los Angeles Co., 46 Cal.App. 148, 189 P. 463.

The necessity and sufficiency of barriers was a question of fact for the jury. (City of Rosedale v. Cosgrove, 10 Kan. App. 211, 63 P. 287.)

Officers charged with the duty of the construction and maintenance of highways are not personally liable for injuries arising from defects or obstructions in such highways. (Gorman v. County Commissioners, 1 Idaho 655; Worden v. Witt, 4 Idaho 404. 95 Am. St. 70, 39 P. 1114; Davis v. Ada County, 5 Idaho 126, 95 Am. St. 166, 47 P. 93; Youmans v. Thornton, 31 Idaho 10, 168 P. 1141; McConnell v. Dewey, 5 Neb. 385; Wood v. Boone County, 153 Iowa 92, Ann. Cas. 1913D, 1070, 133 N.W. 377, 39 L. R. A., N. S., 168; Gibson v. Sioux County, 183 Iowa 1006, 168 N.W. 80; Snethen v. Harrison County, 172 Iowa 81, 152 N.W. 12; Freeholders of Sussex County v. Strader, 18 N.J.L. 108, 35 Am. Dec. 530; Schneider v. Cahill (Ky), 127 S.W. 143, 27 L. R. A., N. S., 1009; Dunlap v. Knapp, 14 Ohio St. 64, 82 Am. Dec. 468; Lynn v. Adams, 2 Cart. (Ind.), 143; Richardson v. Belknap, 73 Colo. 52, 213 P. 355; Murray v. Board of Commrs. of Grant Co., 28 N.M. 309, 210 P. 1067; Miller v. Ouray Elec. Light & Power Co., 18 Colo. App. 131, 70 P. 447; People v. Hoag, 54 Colo. 542, 131 P. 400; Bolland v. Gihlstorf, 134 Minn. 41, 158 N.W. 725; Daniels v. Hathaway, 65 Vt. 247, 26 A. 970, 21 L. R. A. 377; Robertson v. Monroe, 79 N.H. 336, 109 A. 495; Jones v. Mobile & O. R. Co. (Ky.), 127 S.W. 144; Wheatley v. Mercer, 9 Bush (Ky.), 704.)

There is no evidence that the commissioners were guilty of any wilful negligence, neither does the complaint state facts sufficient to sustain a finding to such effect. ( Templeton v. Beard, 159 N.C. 63, 74 S.E. 735; Crowder v. Emery, 206 Ill.App. 562; Huffstuttler v. Crabtree, 197 Ill.App. 191; Ruffin v. Garrett, 174 N.C. 134, 93 S.E. 449.)

Even in states admitting the liability of such officers, officers of municipalities cannot be held personally liable where their only connection with the repairing of the highways was to officially as a board, authorize or direct a lawful improvement. Such acts being classed as quasi-judicial or discretionary. (Nagle v. Wakey, 161 Ill. 387, 43 N.E. 1079; Gray v. City of Batesville, 74 Ark. 519, 86 S.W. 295; Scoville v. Lange, 204 Ill.App. 82.)

Especially are such officers not liable when, as in the present case, they were not physically or personally present directing the work. (Brown v. West, 75 N.H. 463, 75 A. 169; Bowden v. Derby, 97 Me. 536, 94 Am. St. 516, 55 A. 417, 63 L. R. A. 223; Bates v. Horner, 65 Vt. 471, 27 A. 134, 22 L. R. A. 824.)

Foremen or overseers engaged by the board are not to be deemed either agents, servants or employees of the board. Their employment is by the district and...

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