Williams v. Wessington Twp.

• Decision Date: 12 May 1944
• Docket Number: 8657
• Citation: 70 S.D. 75,14 N.W.2d 493
• Parties: EDNA WILLIAMS, Respondent, v. WESSINGTON TOWNSHIP, Appellant.
• Court: South Dakota Supreme Court

70 SD 75, 14 NW2d 493 (1944)

EDNA WILLIAMS,

Respondent,

v. WESSINGTON TOWNSHIP,

Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Beadle County, SD

Hon. Boyd M. Benson, Judge

#8657—Reversed

Max Royhl, George E. Longstaff, Huron, SD

Attorneys for Appellant.

Temmey & Luby, Huron, SD

Charles P. Warren, Pierre, SD

Attorneys for Respondent.

Opinion Filed May 12, 1944; Rehearing Denied Jun 28, 1944

ROBERTS, Judge.

This is an appeal from a judgment recovered against Wessington Township, Beadle County, for damages arising from injuries sustained on account of a defect in a secondary road over which plaintiff was traveling shortly after midnight on May 3, 1941, in an automobile driven by her husband. They ran into a washout in an approach to a bridge and plaintiff sustained personal injuries.

Counties and townships, being quasi corporations, are not liable in the absence of statute imposing liability for injuries caused by defective highways. Robinson v. Minnehaha County, 65 SD 628, 277 NW 324. The reason assigned for the rule of non-liability at common law is that counties and townships are political subdivisions of the state exercising a part of the sovereign powers of the state and liable only to the extent the state itself would be in the absence of statute imposing liability. Bailey v. Lawrence County, 5 SD 393, 59 NW 219, 49 AmStRep 881. A distinction in this respect is recognized between quasi corporations and municipal corporations. The general rule is that cities and towns are liable for injuries sustained in consequence of their failure to use due care to keep their streets in a reasonably safe condition for public travel. Norberg v. Hagna, 46 S. D 568, 195 NW 438, 29 ALR 841; Jensen v. Juul, 66 SD 1, 278 NW 6, 115 ALR 1280.

Prior to 1915 we had no statute imposing liability on townships. Hanigan v. Minnehaha County, 47 SD 606, 201 NW 522. By Chapter 210, Laws 1915, townships were made liable under certain circumstances for injuries sustained because of defects in highways, culverts and bridges. This statute, revised and re-enacted as SDC 28.0913, reads as follows:

“In case any highway, culvert, or bridge shall become in whole or in part destroyed or out of repair by reason of floods, fires, or other cause to such an extent as to endanger the safety of public travel, it shall be the duty of the governing body or board under statutory duty to maintain such highway, culvert, or bridge upon receiving notice thereof to cause to be erected for the protection of travel and public safety, within twenty-four hours thereafter, substantial guards over such defect or across such highway of sufficient height, width, and strength to guard the public from accident or injury and to repair the same within a reasonable time thereafter. It shall also be the duty of such governing body or board to guard any abandoned public highway, culvert, or bridge in like manner.

Any person who shall sustain injury to person or property by reason of any violation of this section shall have a cause of action against the county, township, city, or town as the case may be for such damages as he may have sustained.”

Under the provisions of SDC 28.0401, the governing board of a township is charged with the responsibility of repairing and maintaining all secondary roads in the township.

The assignments of error bring before us for review the correctness of the interpretation by the trial court of the provisions of section 28.0913, supra. The court instructed the jury that “the twenty-four hour provision in the statute does not mean that the board, after receiving notice of the defect, could, in all cases, wait until the twenty-four hours had almost expired before erecting the guards, nor under all circumstances must they erect them immediately. But the statute does mean that the board must erect reasonable warnings and substantial guards to protect the traveling public...