Shupe Ex Rel. Shupe v. County of AntelopeShupe Ex Rel. Shupe v. County of Antelope
Lead Opinion
This is a tort action instituted in the district court for Antelope County by Patricia Shupe, a minor, by and through her father and natural-guardian, Belvin Shupe. It was brought against the County of Antelope, the Township of Grant, which is in Antelope County and a part thereof, Penwell & Deckert Construction Company, a copartnership consisting of Charles Penwell
The action was dismissed as to the County of Antelope and the Township of Grant. No appeal or cross-appeal was taken therefrom. It proceeded to trial against the defendants Penwell & Deckert' Construction Company, a copartnership, and Lloyd Deckert. The plaintiff obtained a verdict against them in the sum of $1,000 on which judgment was entered. Defendants filed an alternative motion asking for either a judgment notwithstanding the verdict or for a new trial. This appeal was taken from the overruling thereof.
The collapsed bridge hereinbefore referred to resulted from a 12-ton caterpillar tractor being driven thereon which caused the east end thereof to collapse. This tractor belonged to’the appellant copartnership and was being operated at the time by appellant Deckert, a member thereof. This bridge, which is 16 feet long and across a dry watercourse, is part of township road No. 202, which is a dirt road over which the board of Grant Township had general supervision. See § 39-401, R. R. S. 1943. It was the duty of the board to maintain and keep it in repair, including all bridges therein not over streams, so it would be fit for travel by the public. See § 39-803.05, R. R. S- 1943. In this regard the township did not have a road overseer nor, apparently, had they selected one of their members to be the township highway superintendent as provided for by section 39-401, R. R. S. 1943. It is apparent the members of the board, as such, performed these duties themselves.
The incident referred to happened about 1:30 p. m. on Wednesday, April 26, 1950. It resulted in the east end of the bridge resting upon the bottom of the dry watercourse some 4 feet below the level of the road. It happened when the tractor was being driven from one
The rule adopted in this state is: “* * * when one engaged in the lawful use of the highway causes an obstruction to be placed upon it in such a manner as to be dangerous to traffic, he must use ordinary care to prevent injury to others' where he knows that said obstruction is calculated to do injury to travelers upon said highway. The negligence in such a case consists of having placed an obstruction upon the street, and leaving it in such a manner as will be dangerous to others using the street.” Simonsen v. Thorin,
An obstruction, in the sense here used, includes anything which will interfere with the public’s reasonable use of the highway easement.
Whether or not appellant Deckert was guilty of any negligence in the first instance is not here material for, as stated in Simonsen v. Thorin, supra: “Whoever places an obstruction in a public highway, even by an involuntary act and without negligence, is under an obligation to remove such a nuisance from the highway or is required to use ordinary care to warn the traffic on said highway of the dangers incident to said obstruction.”
Appellants had no authority over the bridge and consequently no authority to remove the obstruction by repairing it. That was the duty of the board of Grant Township. See § 39-803.05, R. R. S. 1943. The first question is, did appellant Deckert use ordinary care to immediately warn the public using the road of the danger created by the collapsed bridge?
After the bridge collapsed appellant Deckert was able to and did remove the tractor therefrom. He then used his tractor to level off the ditch north of the road and bridge. He fixed it so this ditch could be used as a road and thus made it possible for the traffic on the road to
About 4 p. m. on the same day appellant Deckert looked for and found Frank Spiekermann, a member of the Grant Township board. He found him in Tilden, Nebraska, which is about 5 miles from the bridge. He advised Spiekermann of what had happened and what he had done. Spiekermann testified he told Deckert, “* * * we (meaning the township board) would take care of it” and that, “* * * we (meaning the township board) would put up something more proper.” Deckert testified Spiekermann told him, “I’ll go out and look at it, and get some steel posts and put up a barricade.” The evidence is undisputed that by 4 p. m. of the day the bridge collapsed Spiekermann, a member of the township board, was fully informed of what had happened and, in his capacity as a member thereof, assured appellant Deckert that the board would take charge of the situation.
The evidence shows Spiekermann went out to the bridge sometime before 5 p. m. on the same day and looked over the situation. He then went to see and talk
Sometime between 8:15 and 8:30 p. m. on Sunday, April 30, 1950, more than 4 days after the bridge had broken down, appellee was riding in a 1934 Chevrolet coach which her father was driving. It was dark at the time. They were traveling east on township road No. 202 just west of this bridge. As already indicated there had been no barricades, flags, flares, or any other warnings placed to warn of the condition of the bridge other than those which appellant Deckert had placed there. In the absence of such warnings, appellee’s father did not see the condition of the bridge until his front wheels were just on the west end thereof. He was not able to avoid crashing into the east bank. Appellee, who was riding in the back seat, received injuries as a consequence. Appellee could, under the situation here, not be charged with the conduct of her father if, by any standard, it could be said he was negligent.
As already stated, appellant Deckert did use ordinary care to prevent injury to others in the first instance because, without question, the warnings he put up were sufficient to notify the traveling public of the dangers
The primary question then is, was appellant’s continuing duty to see that the public was adequately warned of an obstruction in a public road in the form of a broken-down bridge, which bridge had broken down while he was using it, satisfied when he notified the public officers, whose duties placed them in charge thereof, of its condition and after these officérs had advised him they would take care of it and had had a reasonable length of time in which to do so before the accident happened out of which the injuries were received?
Negligence is the doing of something which an ordinarily prudent person would not have done under the same or similar circumstances, or the failure to do something which an ordinarily prudent person would have done under the same or similar circumstances. See, Murray v. Pearson Appliance Store,
In this regard: “Foresight, not retrospect, is the standard of diligence. It is nearly always easy, after an accident has happened, to see how it could have been avoided. But negligence is not a matter to be judged after the occurrence. It is always a question of what reasonably prudent men under the same circumstances would or should, in the exercise of reasonable care, have anticipated.” 1 Shearman & Redfield on Negligence (Rev. ed.), § 24, p. 50.
Appellant Deckert notified the public officers in charge of this road and bridge, and who had authority to act in regard thereto, of what had happened and what he had done. They told him they would take care of it and put up something more proper.
We have said: “It is a presumption of law that public
Appellant had a right to rely on this presumption and cannot be charged with the failure of these public officers to perform their duties.
As stated in 1 Shearman & Redfield on Negligence (Rev. ed.), § 24, p. 61: “Reasonable anticipation ordinarily permits reliance upon the care of others. A person is not negligent in failing to anticipate that another person will be negligent.”
In regard to this continuing duty, we said in Simonsen v. Thorin, supra: “They had a positive, continuing duty to the public traveling the street to warn of this danger. The situation in such a case is not unlike that of a private contractor who opens up an excavation in the street, which is a lawful act and done without negligence, but he is required to use ordinary care in preventing injury to others.”
But we have said of such private contractors that when there was an actual acceptance of the work this relieved him from any further duty in this regard. As stated in Haynes v. Norfolk Bridge & Construction Co.,
We find, as a matter of law, that when appellant Deckert contacted the public officials, who had supervision and control of this road and bridge, and advised them of what had happened and what he had done and they, in turn, advised him they would take care of the
Appellee contends that there is evidence from which a jury could find that appellant Deckert was negligent in the first instance in causing the bridge to collapse and consequently, on the basis of joint liability, could be held liable although the township officials may have been negligent in failing to put up proper warning signs to warn those traveling at night of the dangerous condition.
As stated in Schweppe v. Uhl,
“But if the acts or neglects were not concurrent in time, and the party last in fault was chargeable with some duty to the other which, if performed, would have prevented the injury, the law will attribute to his culpable conduct the injurious consequence, and refuse to look beyond it.” Cooley on Torts, § 52, p. 133.
However, this question is not material here for the duty to warn arises regardless of whether the obstruction in the highway was caused by conduct which was or was not negligent. See, Simonsen v. Thorin, supra. But assuming, for the sake of discussion only, that it could be found that appellant Deckert’s actions in relation thereto could be found negligent they would still have to be a proximate cause of the accident in which appellee was injured.
We said in Anderson v. Byrd,
“Proximate cause, as used in the law of negligence,*383 is that cause which in a natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the injury would not have occurred.
“An efficient intervening cause is a new and independent force which breaks the causal connection between the original wrong and the injury. The cause of an injury is that which actually produces it, while the occasion is that which provides an opportunity for the-causal agencies to act.
“An alleged cause of an accident may sometimes be merely a condition and not the real cause. The activities of inanimate things are usually mere conditions' and not causes. Atlantic Coast Line R. Co. v. Daniels,8 Ga. App. 775 ,70 S. E. 203 .”
In Frerichs v. Eastern Nebraska Public Power Dist.,
As stated in Gordon v. Bedard,
And as stated in Rulane Gas Co. v. Montgomery Ward & Co.,
Even assuming that appellant Deckert’s conduct in driving his 12-ton tractor onto this bridge could be found to be negligent, which we seriously doubt but which we do not decide, it wpuld not be sufficient, under the factual situation here present, on which to base a recovery in view of the foregoing principles.
In view of what we have herein said, we find the cause should never have been submitted to a jury and that therefore appellants’ motion for a judgment notwithstanding the verdict should have been sustained. We reverse the judgment of the trial court and remand the cause to the district court with directions to sustain appellants’ motion and dismiss the action.
Reversed and remanded with DIRECTIONS TO DISMISS.
Dissenting Opinion
dissenting.
I dissent.
I see no reason to discuss the question of the sufficiency of the warnings placed by defendants so far as daylight is concerned, for this accident, to plaintiff happened at night.
The court apparently concedes that the liability of the defendants as to sufficiency of warnings would normally be a jury question, but holds as a matter of law that that liability was severed, because of notice to members of
Although I do not deem it as a law matter of controlling materiality here, yet we should keep our facts straight. The court says that the township officers advised the defendants “they would take care of it” and “agreed to put up something proper.” The court’s recital of facts shows that one township official, acting without concurrence of the others, and by defendants’ testimony, speaking in the first person, singular, so advised the defendants, and that notice of the condition of the bridge was gotten to the other members before the accident.
I do not question the duty of the township officials to do something about the bridge — but the question here is the duty and liability of the defendants in the matter.
The court quotes from Simonsen v. Thorin,
“When one engaged in the proper use of a highway causes an obstruction to be placed upon it in such a manner as to be dangerous to traffic, he must use ordinary care to prevent injury to others where he knows that such obstruction is calculated to do an injury to travelers upon said highway.
“The negligence in such a case is, after having placed an obstruction in the highway, to leave it in such a manner as will be dangerous to others using the highway.
“Whoever places an obstruction in a public highway, even by an involuntary act and without negligence, is under obligation to remove such a nuisance from the highway or is required to use ordinary care to warn the*386 traffic on said highway of the dangers incident to said obstruction.”
We there held that the creation of the obstruction was the creation of a nuisance and that the negligence consisted in having placed an obstruction upon the street and leaving it in such a manner as to be dangerous to others using the street. In Swinford v. Finck,
We followed Simonsen v. Thorin, supra, in Grantham v. Watson Bros. Transportation Co., on rehearing,
In Kuska v. Nichols Construction Co.,
The court here recognizes that the rule is, as stated in Simonsen v. Thorin, supra, that this is a continuing duty. Obviously the continuing duty arises because the obstruction is continuing, and as we held in Kuska v. Nichols Construction Co., supra, “is continuing negligence as distinguished from a condition.” The court now by three quotes from decisions dealing with “conditions” clouds the meaning of what heretofore has been a clearly stated rule.
We have then here a case. where clearly under our holdings the negligence of the defendants was continuing, up to and including the time of the accident to plaintiff.
There is no attempt here to charge the defendants with the failure of the township officials to do their duty,
But the court holds that the fact that defendants gave notice to the members of the township board, had a promise by one of them to take care of it, and because the board had a reasonable time to do it, as a matter of law that constitutes all' that any reasonably prudent man was required to do.
Obviously it is the lapse of time, in this instance 4 days including a Saturday and Sunday, which the court concludes is the controlling element which relieves the defendants of liability as a matter of law, and that in any event the failure of the township board to do anything in that 4 days was as a matter of law the proximate cause of this accident.
The court cites and quotes from Haynes v. Norfolk Bridge & Construction Co.,
Restatement of the Law states the applicable rule as ' follows:
“Failure of a third person to perform a duty owjng*388 to another to protect him from harm threatened by the actor’s negligent conduct is not a superseding cause of the other’s harm.
“The fact that the third person has failed to perform his duty to protect the other from harm threatened by the actor’s negligence, implies that, had the duty been performed, it would have prevented the actor’s negligence from causing the harm which results from it. In order that there can be a failure of a duty of protection the person owing it must have either the opportunity to perform it or at least he should have had such an opportunity had he been reasonably attentive to his surroundings. The third person’s failure to perform his duty in this respect makes him concurrently liable with the negligent actor for any harm which results from the actor’s negligence and which would have been prevented by the performance of the third person’s, duty.” Restatement of the Law, Torts, § 452, p. 1206. The following illustration of the rule is given: “2. A, the owner of a house abutting on a city street, employs B to dig a trench across the highway to make connection with a sewer. B does the work of replacing the sidewalk so negligently as to make the sidewalk dangerous for travel. A, though knowing of this, takes no steps to put the sidewalk in safe condition. Several weeks after B has left the job as completed, C, without negligence, is hurt by the bad condition of the pavement. A’s failure to have the sidewalk repaired makes him liable to C but is not a superseding cause relieving B from liability to A.”
38 Am. Jur., Negligence, § 67, p. 722, states the rule as follows: “The test of the sufficiency of an intervening cause to defeat recovery for negligence is not to be found in the mere fact of its existence, but rather, in its nature and the manner in which it affects the continuity of operation of the primary cause, or the connection between it and the injury. * * * In order to be effective as a cause ‘ superseding prior negligence, the
In 65 C. J. S., Negligence, § 111, p. 693, the following rule is stated: “An intervening cause, in order to break the causal connection between the original negligence and the injury, must come into operation in producing .the result after the negligence of the original .actor; and, if the original negligence continues to the time of the injury, an intervening act will not relieve the original actor of liability.”
1 Shearman & Redfield on Negligence (Rev. ed.), §§37 and 38, p. 101, states the rule as follows:
“If the force which causes the injury is put in operation or motion by what is the negligence of the defendant, and that force or motion is still in progress or operation and has not lost its identity and continuity as such when the injury occurs, then the negligence which puts the injurious force in operation is the proximate cause.
“In order to relieve the defendant of responsibility for the event, the intervening cause must be a superseding cause. It is a superseding cause if it so entirely supersedes the operation of the defendant’s negligence that it alone, without his negligence contributing thereto in the slightest degree, produces the injury.”
From the many cases cited in the texts I refer to three because of the factual situations involved.
Shewell v. Borough of Narbeth, 54 Montgomery Coun
“Assuming as we must for our present purpose, that the stump created a dangerous condition in the highway, and that the borough had notice of the same; was the negligence of the borough in permitting the condition to remain, the proximate cause of the plaintiff’s injury?” The court quoted Restatement of the Law, Torts, § 452, p. 1206, and then held: “* * * the negligence of Nepi Brothers in creating the dangerous condition in the highway, was the active negligence, and the negligence of the borough in permitting it to remain, the passive negligence.”
In Diehl v. Fidelity-Philadelphia Trust Co.,
In Holmes v. T. M. Strider & Co.,
On these authorities I would hold the duty of the defendants being a continuing one, as the court holds, that the question of whether or not defendants exercised due care to reasonably warn of the dangerous condition of the highway, which they created, was, at least, a jury question. On that feature of the case I would affirm.