199 P. 974 | Utah | 1921
Lead Opinion
Plaintiff brought suit against the defendant fox damages, alleged to have been sustained by him by reason of an accident caused by a defective county road or highway in Davis county.
In substance it is alleged by the complaint that on April 3, 1919, defendant entered into a contract with the State Road Commission for the construction of a hard-surface roadbed over and along a state road, commonly known as the Clear-field-Sunset Highway, being a part of the only continuous trade route between Salt Lake City and Ogden, Utah; that on August 17, 1919, defendant’s operations upon said state highway, pursuant to said contract, were such as to render it impassable to vehicles for a distance of about two miles, and for which distance said road was closed to traffic; that thereupon it became the duty of defendant to provide another reasonably safe road or detour for the accommodation of the public traffic; that the defendant, disregarding his duty in that behalf, “negligently and carelessly designated, by means of painted and written directions erected along the roadside, as a part of such way or detour a certain public four-rod right of way in said Davis county for the purpose of accommodating traffic necessarily diverted from said Clearfield-Sunset Highway, which said detour or way was not in a reasonably safe condition for the use of traffic’’; that on said 17th day of August, 1919, the plaintiff, while traveling by automobile from Salt Lake City to Logan, Utah, over said Clearfield-Sun-set Highway, followed the said directions of the defendant by taking the said detour, and, upon meeting and while attempting to pass another automobile on the narrow traveled portion of said detour, was precipitated into a wash or ravine, occasioning the injuries of which he complains. Attached to and made a portion of the complaint was a copy of the contract entered into by defendant with the State Road Commission, wherein, among other things, it was provided:
“Sec. 7. Keeping Road Open. In order that traffic shall not be stopped, the contractor shall maintain the highway, or if it is impossible to maintain highway in fair condition during construe*481 tion a reasonable detour shall be maintained and kept in good condition. Any necessary dragging or scraping of this detour to make and keep it passable must be done as directed by the engineer and at the expense of the contractor.
“Obstructions and Guards. The contractor shall, erect and maintain good and sufficient guards, barricades and signals on all sides of incompleted portions of the work which can be plainly seen by day and on which he must keep red lights at night, and must at all times take every precaution to protect the traveling public against accident.
“The contractor shall at all times provide and maintain a safe passageway for all traffic and shall take all other precutions to prevent accident or loss.”
It is further alleged by the complaint that no warning signs of the defect in said detour were put up or given by the defendant whereby the plaintiff or other persons lawfully traveling over it might be apprised or warned of its dangerous condition, caused by the wash or ravine into which plaintiff was precipitated.
After defendant had answered the cause came on regularly for hearing before a jury, and thereupon plaintiff proceeded to offer evidence in support of the allegations of his complaint. Defendant objected to the introduction of any evidence on behalf of the plaintiff, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The objection was sustained by the trial court. Thereupon defendant moved for and was granted an order dismissing the complaint. Plaintiff appeals from the order of dismissal, and assigns as error said ruling of the court.
It is contended by plaintiff that by reason of the defendant’s closing the state highway from travel and failing to provide a reasonably-safe passageway or detour for the traveling public, and by pointing out and designating the Davis county road as a detour, he thereby adopted the latter as a detour and became legally responsible for its defective and dangerous condition; that at least it became his duty under his contract with the State Road Commission to point out or apprise travelers by timely and sufficient warnings of the presence of dangerous defects.
In support of this contention we are cited to the ease of
Under the provisions of Comp. Laws Utah 1917, §§ 2800, 5848, subd. 15, the Davis county road, on which the accident of which plaintiff complains occurred, is deemed a public highway. As such it was under the direction and supervision of the county commissioners of Davis county, and it was the duty of said commissioners to keep the road clear of obstructions and in good repair. Section 2823, as amended by Laws Utah 1919, c. 55.
It is therefore difficult to conceive upon what theory the defendant might be held to respond in damages for failure to keep in good repair the public road or highway in question. His contract with the State Road Commission was with respect to a state road, the Clearfield-Sunset Highway, and no
If there be any principles of law or justice under which the defendant should have been held to respond in damages to the plaintiff for the defective condition of the Davis county road, by reason of which plaintiff’s injuries were sustained, counsel in their brief have signally failed to point them out, and, unaided, we ourselves have been unable to conceive of such.
Let it be conceded, as was contention made by the plaintiff, that defendant by his acts in closing the Clearfield-Su aset Highway and directing travel to the Davis county road thereby adopted the latter as a detour, then as a matter of law we
Dissenting Opinion
(dissenting). The trial court sustained the defendant’s demurrer to plaintiff’s evidence. The court was of the opinion that the complaint did not state a cause of action. The provisions of the contract existing between defendant and the State Road Commission were for the benefit of the traveling public, and as plaintiff was one of the traveling public such provisions were for his benefit. Metcalf v. Mellen, 57 Utah 44, 192 Pac. 676. By section 7 of the defendant’s contract with the State Road Commission it was stipulated as follows:
“In. order that traffic shall not he stopped, the contractor shall maintain the highway, or if it is impossible to maintain the highway in fair condition during construction a reasonable detour shall he maintained and kept in good condition. * * * ”
Also, by the provisions of section 8 of the contract, the contractor (defendant) was obligated to “at all times provide and maintain a safe passageway for all traffic and shall take all other precautions to prevent accidents or loss.” It is likewise admitted by the demuiTer that in repairing the highway the same was closed to traffic, and that defendant desig
For the reasons indicated, I cannot concur in the conclusions reached by the Chief Justice. I therefore dissent.