Turner County, SD v. Miller

• Decision Date: 27 December 1948
• Docket Number: No. 13727.,13727.
• Citation: 170 F.2d 820
• Parties: TURNER COUNTY, S. D. v. MILLER.
• Court: U.S. Court of Appeals — Eighth Circuit

170 F.2d 820 (1948)

TURNER COUNTY, S. D. v. MILLER.

No. 13727.

United States Court of Appeals Eighth Circuit.

December 2, 1948.

Rehearing Denied December 27, 1948.

M. T. Woods and H. L. Fuller, both of Sioux Falls, S. D., and L. L. Madsen, of Parker, S. D., for appellant.

Davenport, Evans & Hurwitz, of Sioux Falls, S. D., for appellee.

Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from a judgment for the plaintiff (appellee) entered upon the verdict of a jury in an action which he brought against Turner County, South Dakota, to recover for personal injuries resulting from a collision of his automobile with a bridge maintained by the County in connection with its highway system. Jurisdiction was based on diversity of citizenship.

The accident occurred shortly prior to one o'clock on the morning of March 3, 1946, while the plaintiff was driving his car east across the bridge. Attributing the accident to the collapse of the bridge, he filed a claim against the County based on § 28.0913 of the South Dakota Code.¹ He asserted in his claim that the bridge had become out of repair to such an extent as to endanger the safety of public travel; that the governing body of the County had notice of this dangerous condition more than twenty-four hours before the bridge collapsed, but did not cause to be erected guards across the highway as required by law; and that the County's failure in this regard caused the accident and plaintiff's resulting injuries. The County rejected the claim, and the plaintiff brought this action upon it.

In its answer, the County admitted that the bridge was a part of its highway system; that on March 3, 1946, the plaintiff operated a motor vehicle upon the bridge; that the bridge collapsed; and that he had filed a claim against the County, which was rejected. The County denied that the collapse of the bridge was due to any act or omission on its part. It charged that the negligence of the plaintiff in the operation of his automobile caused the collapse of the bridge, and that any injuries he sustained were the result of his own negligence.

Upon the trial, the controverted issues of fact were:

1. Had the bridge become out of repair to such an extent as to endanger the safety of public travel?

2. Did the Board of County Commissioners have constructive notice of the alleged dangerous condition of the bridge more than twenty-four hours prior to the collapse?

3. Was the failure of the County to erect guards or barricades, in order to stop traffic over the bridge, the proximate cause of the accident?

4. Was the plaintiff negligent in the operation of his automobile, and did his negligence, if any, cause or contribute to the happening of the accident?

5. What damages, if any, was the plaintiff entitled to recover?

The errors asserted by the County on this appeal relate to the refusal of the District Court to direct a verdict for the County and to various rulings and instructions of the court during the trial which it is contended made the trial unfair and imposed a liability upon the County in excess of its statutory liability.

The substantive law applicable to this case is that of South Dakota. The applicable procedural law is that of the United States. It is conceded that the liability of a county of South Dakota for injuries resulting from defects in a bridge or highway is purely statutory, and that § 28.0913 of the South Dakota Code is the controlling statute. See Williams v. Wessington Township, 70 S.D. 75, 14 N.W.2d 493; Vesely v. Charles Mix County, 66 S.D. 570, 287 N.W. 51; Pederson v. Canton Township, S.D., 34 N.W.2d 172, 174; Jackson County, S. D., v. Dufty, 8 Cir., 147 F.2d 227, 228; Minnehaha County, S. D., v. Kelley, 8 Cir., 150 F.2d 356, 358.

The factual situation out of which this controversy arose was, in substance, as follows:

The scene of the accident was about one and a half miles northeast of Parker, South Dakota, where the bridge in suit carries a graveled east-west highway across the Vermillion River, a shallow stream. The bridge is of the steel truss type. Two end posts or slant chords on each side of the bridge rest on piers and support steel girders, which are fastened to the top of these end posts. Vertical members extend downward from the girders to furnish support for the steel I-beams or transverse members upon which the floor or deck of the bridge is laid. These I-beams are attached to the lower ends of the vertical members by hanger plates. The I-beams support wooden stringers to which planks, laid crosswise, are spiked to furnish the floor of the bridge. On each side of the bridge eye-bars extend from the base of each end post to the base of the other, in order to prevent the end posts from spreading longitudingly. The entire weight of the bridge is borne by the end posts. There were suitable cross bracings near the top of the end posts, and cross-members and eye-rods extending from the top of one girder to the top of the other to hold the truss structure intact. There was also cross bracing under the floor of the bridge between the transverse beams or I-beams, to prevent side sway. The bridge proper was 99 feet long, and with its approaches was 144 feet 8 inches in length. The floor was about 15 feet 6½ inches wide. The approach span west of the bridge proper was 30 feet 2 inches from the bank of the stream to the west piers of the bridge. The approach span on the east side of the bridge was 15 feet 6 inches long. The floor of the bridge was approximately 12 feet above the ground at the edge of the stream.

The I-beams or transverse members supporting the floor of the bridge, which were attached to the hanger plates which were in turn attached to the vertical members of the bridge, were about 16 feet 9 inches long. The I-beams were spaced 16 feet 6 inches apart. There were five of these beams under the floor of the bridge proper. At the time of the trial, for convenience, the points at which the beams were located were numbered 1 to 5, starting from the east end of the bridge. Each panel of flooring from I-beam to I-beam consisted of fourteen 3x12 stringers 18 feet long, to which were spiked 3x12 planks 15 feet 6½ inches long. The stringers overlapped each other at the I-beams, and one series of stringers was spiked to the adjoining series, where they overlapped, by large spikes and were also held together by the floor planks where the ends of the stringers overlapped each other. The structural adequacy of the bridge, if kept in good condition and repair, was unquestioned.

On March 3, 1946, the plaintiff left Parker, South Dakota, in his Ford automobile to go to his parents' farm, which was northeast of the bridge in suit. This was shortly after midnight. Edward Konda, the plaintiff's brother-in-law, accompanied him. The plaintiff was driving. As the plaintiff approached the bridge, his brother, Willard Miller, who had left Parker at about the same time, was driving a Chevrolet automobile close behind the plaintiff's car.

The plaintiff's testimony as to what occurred when his car was on the bridge is as follows:

"* * * As I reached and actually drove onto the bridge my speed was somewhere between thirty and thirty-five miles an hour. On the first part of that bridge I did not have any difficulty of any kind. I had my car under control. I did not hit or strike any part of that structure until I was at least half way across it. Nothing out of the ordinary occurred until I was about half way over. Then it kind of felt like the floor had went out from under and skidded to the side. It tipped to the south a little like it gave out from under me going down. The floor gave out from under me. It acted like it was tipping towards the south, towards my right. Those two motions, the feeling like the floor was giving and tipping to the right came very close together. The next thing I remember was a big bump.

"Q. How close did that come to the sensation you have described of the floor giving way and tipping to the right? How close together? A. I would say in a matter of seconds. Less than a second.

"Q. Each of them were right together, practically, were they? A. Yes.

"It was a very hard bump, seemed like the spring hit the axle. It threw the steering wheel out of my hand. The steering wheel gave a pull and twisted. I lost hold of it. The character or type of that bump after I felt the floor give way and turn to the right, I felt the axle hit the frame. It was awful hard. The bump jarred the car. Then I felt that twist on the steering wheel and lost hold on the steering wheel. I don't know what happened then. That is the last I remember. I lost control of my car when I lost hold of the steering wheel. I don't remember regaining it after that. That is the last I remember."

Edward Konda testified that as the plaintiff's car was about two-thirds of the way across the bridge, traveling at a speed of from 35 to 40 miles an hour, "there was a sharp bump just like a washout in the road"; that this was at the point numbered 2 (where the second I-beam west of the east piers of the bridge was located). He also testified that he did not personally feel "any tipping to the right"; that he felt as though he was "going down into a washout — a dip," and that he also felt a bump like the body hit the X" axle; that the "dip" and the "jounce" came close together; that the next he remembers he was back of the car on the ground; that the car "had come to a stop on the east end of the bridge, crosswise, by the stone abutment"; that the car was facing north; that the bridge was down; that the Willard Miller car was "sort of balanced over the south side of the bridge."

Willard Miller, the driver of the Chevrolet car which was close behind the plaintiff's car at the time the accident occurred, testified, in substance, that the Chevrolet was 100 to 150 feet behind the Ford driven by the plaintiff; that he (Willard Miller) was...