Franek v. Butler County

254 N.W. 489, 126 Neb. 797, 1934 Neb. LEXIS 329

• Court: Nebraska Supreme Court
• Decided: April 27, 1934
• Docket: No. 28917
• Status: Published

Opinions

Goss, C. J.

At the conclusion of plaintiff’s evidence the court directed a verdict for defendant. From the judgment of dismissal thereon plaintiff appealed.

Plaintiff sued for damages for personal injuries sustained when the automobile in which he was riding ran into a ditch across a road in Butler county. The road was under repairs and the ditch was caused by the removal- of a culvert without the space occupied by it having yet been filled in. There was ample evidence to submit to a jury (in a proper case), subject to the element of his contributory negligence, that plaintiff suffered injuries and that the proximate cause was the condition of the road.

Plaintiff pleaded and defendant admitted that the county is under township organization. Township organization is provided for in sections 26-201 to 26-299, Comp. St. 1929, and affords supervisors (instead of county commissioners), who divide the county into townships. For the purposes of this suit it does not seem necessary to go further into the contents of the chapter. The effect of the judgment below is to decide that a county under township organization is not liable for a defect in a road (or bridge) unless the county is liable to keep it in repair, and that this was not a road of that kind.

• Section 39-832, Comp. St. Í929, makes a county liable for special damages caused by “insufficiency, or want of repairs of a highway or bridge, which the county or counties are liable to keep in repair.” Section 39-227, Comp. St. 1929, provides for the selection and designation, by the board of county commissioners or supervisors, of such laid out and platted public roads as are to be considered “county roads.” Section 39-229, Comp. St. 1929, provides that the total mileage of such county roads' should not exceed 25 per cent, of the total mileage of all the public highways within the county, and “all county roads designated in accordance with the preceding sections of this act shall be maintained at the expense of the county.” Section 39-1206, Comp. St. 1929, provides that the expense of building, maintaining and repairing bridges on public roads “over streams” shall be borne exclusively by the county.

The culvert was removed and about 30 or 40 feet farther south it was supplanted by another bridge or culvert which was to perform the same office, but the grading had not been done to make the change effective. A detour along the roadway passed to 'the east of the location of the old culvert and the new bridge or culvert. The evidence shows that this bridge or culvert did not pass over any stream, and thus section 39-1206, supra, is not applicable.

There is no evidence, or presumption, that the road had ever been designated as a county road. This is a prerequisite to its maintenance at the expense of the county. State v. Steffen, 121 Neb. 39.

At common law a county was not liable for damages for injuries arising out of defects in highways or bridges. Woods v. County Commissioners of Colfax County, 10 Neb. 552; Dawson County Irrigation Co. v. Dawson County, 106 Neb. 367.

In the large mass of statutes relating to public roads we find no statute that makes a county under township organization liable for damages arising out of a status and circumstances such as these. Nor has the diligence of counsel resulted in the production of any. Under the township organization act of 1895 (Laws 1895, ch. 28) counties governed by that act were relieved from the duty “to construct, maintain and keep in repair ordinary highways and culverts” and from liability growing out of negligence in that respect. Goes v. Gage County, 67 Neb. 616. While later acts have amended the township organization statutes, we do not find that these amendments aid appellant.

The judgment of the district court is

Affirmed.

Rose, J., dissents.