Clouse v. County of Dawson

74 N.W.2d 67, 161 Neb. 554
CourtNebraska Supreme Court
DecidedDecember 30, 1955
Docket33838
StatusPublished
Cited by12 cases

This text of 74 N.W.2d 67 (Clouse v. County of Dawson) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clouse v. County of Dawson, 74 N.W.2d 67, 161 Neb. 554 (Neb. 1955).

Opinion

74 N.W.2d 67 (1955)
161 Neb. 554

Reuben L. CLOUSE, Appellee,
v.
COUNTY of DAWSON, State of Nebraska, Appellant.

No. 33838.

Supreme Court of Nebraska.

December 30, 1955.

*69 E. A. Cook, III, Lexington, for appellant.

Smith Brothers, Lexington, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CARTER, Justice.

Plaintiff brings this action to recover for personal injuries and property damage sustained by him in an automobile accident which he alleges was caused by a defective condition of a road maintained by the defendant, the County of Dawson. Judgment was entered on the verdict of the jury for $1,080. The defendant appeals.

*70 On the morning of July 6, 1954, at about 4:25 o'clock, plaintiff was driving his automobile in a westerly direction on the county road on which the accident occurred. He states that he was probably driving from 45 to 50 miles an hour. The automobile was in good mechanical condition. The road was 24 feet wide and graveled. The road was dry and the day was clear. It was not light enough to see by daylight but light enough that his car lights "didn't do a great deal of good." The road was uphill as it approached the turn where the accident occurred. The grade was shown to be 3 percent. The turn was to the left about 45 degrees. The turn to the left was the beginning of a curve which skirted the south end of a canyon and returned to its westerly course. The road was banked at the turn. There was a grassy shoulder about 10 feet in width on the right side of the road where it turned to the southwest. Beyond the grassy shoulder was a canyon which was about 20 feet deep at the spot where plaintiff went into it, and deeper to the north. There was no warning sign apprising the public that a turn in the road was being approached.

The plaintiff testifies that the accident happened in the following manner: He was driving west at a speed of 30 to 50 miles an hour. He usually drove at a speed of 45 to 50 miles an hour, and was probably driving that fast. He was not familiar with the road. It was an ordinary graveled road. The day was clear, but at that time of day his car lights did not do much good. It was too dark to drive without lights. He was watching the road but went into the curve before he realized there was a turn to the left. He applied his brakes and turned to his left, but could not avoid going off the road. He went some distance southwest on the grassy shoulder before he went into the canyon which was 20 feet deep at that point. He says his wheels slid a distance of 15 steps before he struck the grassy shoulder of the road, the marks beginning right at the beginning of the curve. He says he could not see the turn in the road as he came up the hill, although the turn might have been seen in daylight. He says that there was an electric light line which went straight west across the canyon. The grassy shoulder "fit in with the road enough so that I didn't see any obstruction there of any kind." There was no sign or marking as he approached the turn to indicate a turn or dead end there. He says he could not have made the turn at the speed he was traveling had he known that the turn was there, but that he would have slowed down had he known it. He says that previous turns on the road were marked, although the evidence shows that all of them were not marked with safety warning signs at that time. He says that he had no vision in his right eye and that his vision without glasses was not too good. He says that as he entered the turn, a bug or miller got on the left lens of his glasses. He pawed at the insect and accidentally pulled his glasses off. He says that he was then in the turn and that the insect and loss of his glasses had nothing to do with the accident. He suffered some personal injuries, and his automobile was seriously damaged. There was evidence of contributory negligence and conflicting statements by the plaintiff that we do not deem important in view of the findings of the jury. The defendant contends that the foregoing evidence is insufficient to sustain a verdict for the plaintiff, and assigns as error the failure of the trial court to sustain its motion for a directed verdict at the close of all the evidence. We shall first determine the correctness of the court's ruling in denying defendant's motion for a directed verdict.

At common law there was no right of action against a county for the recovery of damages resulting from a defective highway or bridge. The extent of the liability of a county in this state for damages of this character is prescribed by statute. Olson v. County of Wayne, 157 Neb. 213, 59 N.W.2d 400, 402, and cases therein cited. The applicable statute provides: "If special damage happens to any person, his team, carriage or other property by means of insufficiency or want of repair of a highway or bridge, which the county or counties are liable to keep in repair, the person sustaining the damage may recover in an action against the county, * * *;

*71 Provided, however, such action is commenced within thirty days of the time of the injury or damage occurring; * * *." Section 39-834, R.R.S.1943. Under this statute the county is not an insurer of the safety of the users of its roads and bridges or of the safety of the roads and bridges maintained by it for the use of the public. The duty of the county in this respect will not be extended beyond the words and fair implications of the statutory liability. Olson v. County of Wayne, supra.

The liability of the county in the present case is based upon the failure of the county to erect and maintain a safety warning sign to the east of the curve where the accident occurred. The rule governing the duty of a county to erect and maintain safety warning signs was announced in Olson v. County of Wayne, supra, as follows: "A county is not obligated to erect and maintain safety warning signs along its highways apprising the public of conditions such as curves, turns, location of bridges, and similar situations that may be hazardous, unless the duty to exercise reasonable and ordinary care in the maintenance of its highways requires it to do so at a particular location."

The record in this case shows that the highway was 24 feet wide. The road was level and smooth. It was an ordinary graveled highway. The turn was approximately a half turn to the left as distinguished from a full right angle turn. The turn was banked in the ordinary and usual way. Clearly there was no duty on the part of the county to erect and maintain a safety warning sign under the foregoing rule if these were all the facts involved. It is the contention of the plaintiff, however, that there was a canyon approximately 10 feet beyond the right edge of the road that made the turn so hazardous that a duty arose on the part of the county to erect and maintain a safety warning sign east of the turn for the safety of users of the road.

In Tomjack v. Chicago & N. W. Ry. Co., 116 Neb. 413, 217 N.W. 944, 945, the facts, briefly stated, were: The highway was a well-graded and graveled road located in the main on a section line, but, in order to accommodate it to the Elkhorn river, the road for some distance lies west of the section line. The railroad was north of the river. The road where it crossed the railroad track was constructed with a sharp turn to the right in order to cross the highway bridge across the river.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Maresh v. State
489 N.W.2d 298 (Nebraska Supreme Court, 1992)
Oldenburg v. State
374 N.W.2d 341 (Nebraska Supreme Court, 1985)
Fletcher v. State, Department of Roads
344 N.W.2d 899 (Nebraska Supreme Court, 1984)
Christensen v. City of Tekamah
268 N.W.2d 93 (Nebraska Supreme Court, 1978)
Richardson v. State, Dept. of Roads
263 N.W.2d 442 (Nebraska Supreme Court, 1978)
Gordon v. Howard County
280 A.2d 906 (Court of Special Appeals of Maryland, 1971)
Lock v. Packard Flying Service, Inc.
173 N.W.2d 516 (Nebraska Supreme Court, 1970)
Jensen v. Hutchinson County
166 N.W.2d 827 (South Dakota Supreme Court, 1969)
COUNTY COMM'RS OF CARROLL CTY. v. Staubitz
190 A.2d 79 (Court of Appeals of Maryland, 1963)
Smith v. Sharp
354 P.2d 172 (Idaho Supreme Court, 1960)

Cite This Page — Counsel Stack

Bluebook (online)
74 N.W.2d 67, 161 Neb. 554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clouse-v-county-of-dawson-neb-1955.