Hartford Fire Insurance v. County of Red Willow

Paine, J. Plaintiff brought suit against Red Willow County for $576.74, damages to an automobile, which were caused by its falling into a hole in a public road, plaintiff being compelled to pay said sum by reason of being the insurance carrier. At the close of all the evidence, the plaintiff moved to discharge the jury and direct a verdict for the plaintiff, which motion was sustained, and defendant appealed. The plaintiff alleged that the defendant, Red Willow County, is duly organized under the laws of Nebraska, and is not under township organization; that there is a public road running east and west between Sections — 11 — 4 and 9, all in Township 1, Range 28, Red Willow County, Nebraska, which public road had been worked and maintained by the defendant county, which is liable to keep said road in repair. It is further alleged that one Wilson Coghill was driving his 1940 Chrysler sedan, on September 10, 1946, about 6:30 p. m., between Sections 4 and 9, and at the southwest corner of Section 4 he turned to the right, which was to the north, on the public road, and the automobile was precipitated into a hole or depression, about 8 feet deep and 30 feet in diameter, which hole or depression was completely hidden from sight and view of travelers on said road, which wrecked and damaged the automobile; that the defendant county through its employees had notice and knowledge of the defect in the highway, but willfully and negligently permitted said road to remain in a state of bad repair, and negligently omitted to fill it up, or provide barricades to warn travelers of the danger; that the plaintiff is engaged in the business of insuring automobiles against such damage and loss, and was compelled to. pay the owner of said automobile the sum of $576.74, whereupon the owner executed a certain subrogation receipt, attached to and made a part of the petition, thus making the plaintiff the owner and holder of a claim against the defendant county for said sum, no part of which has been paid, and judgment was demanded. The answer of the defendant county is a denial of many of the allegations in the petition, followed by an allegation that whatever injury, damage, or loss Wilson Coghill sustained by driving his automobile, into the hole in the road was occasioned by his gross negligence, which was the proximate cause thereof; that he failed to keep a proper lookout ahead for defects in the highway, that his automobile was not under proper control so that he was able to stop within the — 12 — area of his vision, and that he failed to maintain proper brakes. The reply was a general denial. The defendant assigned as error the refusal of the court to submit the issues to a jury, and the entering of a judgment for the plaintiff. The evidence disclosed that Wilson Coghill lived in defendant county about one mile west of the town of Marion, which is a mile north of the Kansas line, and that the place of the accident is about four miles north of Marion and fifteen miles southeast of McCook, the county seat of defendant county. Coghill, with his wife and son, was driving west on this county road at about ten miles an hour, and turned toward the north on a public road which was very little used, and within a few feet after turning to the north his left front wheel slipped or dropped into a hole in the highway, causing the car to turn over on its top. The automobile was badly damaged, the itemized exhibit A showing the largest item being $125 for a new top, the total of all the damages amounting to $626.74, but the policy had a $50 deductible clause attached to it, so that the plaintiff insurance company was compelled to pay the owner of the car but $576.74, and thereupon became subrogated to his claim against the county. The driver of the car testified that there were no barriers shutting off the road; that the weeds grew very high on the west side of this hole, casting a shadow over the road at that time of day; that he had no knowledge that there was a hole there until his left front wheel dropped into it.' He testified that the sun did not interfere with his vision. George Whisler, a witness for the plaintiff, testified that he lives some 300 yards east of the hole, and was watching out of his window and saw the car fall over into the hole, and went right out to see if somebody was caught under the car. He had lived there about eight or ten years, and there had been a hole there for several years, but there was a track around it. He — 13 — testified that the pictures introduced in evidence, showing the growth of weeds, tall sunflowers, etc., on both sides of the road, correctly represented the condition at the time of the accident. He further testified that one Bob Puelz had fallen into the hole some three months before. The quarter of land, adjoining this hole, where Mr. Whisler lived was farmed to wheat by Rudolph Schultz, who testified that at harvest time he had had a talk with L. E. Nokes, in which he told him they were going to harvest the wheat and they wanted to haul it over that road; that it had a high center, and he wanted him to come out and drag the ridges down, and probably three days later, which would have been early in July 1946, they came out and worked the road some. He testified as to the washout in the road in the corner; that while the hole was seven to ten feet deep there was still room for a car to squeeze by; that after they had hauled out wheat, there were rains. He testified that there was no barricade, flag, or warning sign to indicate that there was a hole in the road. The county called but two witnesses, Myron Bennett, who ran the road maintainer, and L. E. Nokes, in whose commissioner district the place of the accident is located. Myron Bennett, who lives at Danbury, which is five miles east and two miles south of the hole in question, testified that he recalled smoothing up the road at the place of the accident during harvest time in July. His machine is a 74-horsepower motor, and has a 12-foot blade on it, and he was at this place twice about a week apart in July. On cross-examination he testified that he noticed this washout, about 15 or 16 feet from a cornerpost, and he attempted to push some dirt off into it with his blade, but did not fill it up. He was just taking out the high center. L. E. Nokes, one of the three county commissioners, testified that there are about 570 miles of road in his commissioner district to maintain and supervise. -He — 14 — testified that he could not recall whether anyone had ever given him notice that any part of the road in question was dangerous to travel. Frederick Schultz, son of Rudolph Schultz, testified for plaintiff that he had lived in the neighborhood all his life and that this hole had been there five or six years; that there was considerable drainage from the north and northeast running down into that hole, and every time it rained “it would wash out a little bit bigger.” Sheriff Emmett L. Trosper, called by plaintiff, testified that he went out the next morning and took pictures of the hole and of the car on its top down in the hole. He testified that the hole was eight to ten feet deep and fifteen feet wide. The trial court sustained the motion of the plaintiff for a directed verdict, and thereupon gave the jury one instruction, reading as follows: “Gentlemen of the.jury, a motion has been made by the plaintiff that this matter be taken away from the jury and that a directed verdict be given to the plaintiff. On consideration of that motion, the court finds that the evidence here is conclusive that there existed a defect in the road at the south end of the road there between sections four and five in township one, range 28; that that defect was known to have existed at least during the middle of July, 1946, by reason of the fact that one of the county’s employees came there to work the road. The county employee said that he tried to make the road safe for the Schultz’s,' but he placed no barriers or no warning signs to the general public of the defect. The road was open to travel. There were no barriers in any way at either end of the road. There were no barriers placed at the particular hole. The evidence shows that Mr. Coghill entered upon this road driving slowly, or as we say in legal language, was taking due care. There was no contributory negligence on his part. It is true that there is some evidence that Mr. Coghill — 15 — made the statement that he might have been blinded by the sun, but, as you know, he stated that, he turned his car to the northwest and as he drove, he was driving about ten miles an hour. From that evidence, it is very clear that he was driving as any ordinary, prudent person would have done under the circumstances, and he dropped into the hole. Further, we find that there is no question whether the county had notice. There is no question as to whether or not Mr. Coghill was guilty of any contributory negligence. There is no question but what he was using due care, and further, there is no conflicting testimony as to the reasonable value of repairing Mr. Coghill’s car. There is no testimony offered against the testimony that was offered by the plaintiff. Therefore, it leaves no question for the jury to determine, no question of fact, and under the circumstances, the court has directed a verdict in favor of the plaintiff and entered judgment in the sum of $576.74. Therefore, at this time you are excused from further service.” The answer of the defendant county charges that the damages sustained by Coghill were occasioned by his gross negligence, in that he failed to keep a proper lookout for defects in the highway, and did not have his automobile under proper control so that he was able to stop within the area of his vision. The assignment of error rests upon the single fact that, the driver of the car being negligent, it was error for the court to fail to submit the question of negligence and contributory negligence to the jury. Although the defendant charged negligence in its answer, it produced no witness who testified to any negligence whatever on the part of the driver of the car. The evidence of plaintiff shows that Mr. Coghill was driving his car along the public road slowly, at a speed he testified as not to exceed ten miles an hour; that at that time in the afternoon, as he was driving west, the sun was about an hour high, but the defend — 16 — ant’s attorney on cross-examination could not bring out that it interfered in any way with his vision; however, that would be immaterial, for at the time of the accident he had turned his car toward the north. The rays of the sun struck the rank growth of sunflowers and tall weeds along the west side of this little-used road and shaded the east edge of the washout, which the pictures indicate just barely took out the left track of the road, not reaching to the center of the road, and the sunflowers hid the great hole, eight to ten feet deep and 15 to 20 feet across, out where the ditch at the side of the road would ordinarily be. Would this not constitute a trap to the driver of the car? The evidence shows that he was not familiar with this road and knew nothing whatever of this great washout behind the rank growth of weeds at the side of the road at this place, and there is no evidence to show that he was not driving with the ordinary care required of him at the time. Exhibit No. 1 is a picture taken by the sheriff the next day from about 25 feet south and east of the hole, and it does show a small hole in the left side of the road, reaching over the left track, but we must consider that when this picture was taken the sun was shining directly on the hole, while at about 6:30 the evening before the tall weeds along the west side would have cast a shadow, which doubtless would entirely conceal the hole from casual observation of an ordinary driver. It is argued that the sun blinded the driver of the car, and this requires an examination of his testimony, as follows: Wilson Coghill, on direct examination: “Q-Where was the sun about that time, if you remember? A- Oh, I would say about an hour high, if that is an answer. Something like that.” On cross-examination: “Q- And you say the sun was about an hour high? A- I’d imagine. Q- Now, was that sun directly in front of you or not? Q- (sic) Well, when do you mean? As long as I was driving straight west, it was. I don’t know whether — 17 — it quite was. I imagine it was a little south at that time of the year. Q- Did it interfere with your vision at all? A- Not any more than the sun would any time during that time of the afternoon. Q- It was pretty much straight ahead of you before you made the turn? A-Before I turned, I think it was pretty well straight in front of me.” George Whisler saw the top of the car disappear into the hole and went right out; then Coghill was still in the car, which was upside down. On cross-examination Whisler was asked: “Q- Did he say anything about the sun blinding him at about that time? A- I don’t know that he did. He said something about the sun sort of blinded him or affected his seeing the road or something. I don’t just recall the words.” Do such statements, found only in the cross-examination of these two witnesses, constitute competent evidence of any negligence on the part of the driver of the car? In the opinion of the trial court, it- was not sufficient to require the submission of the issue of contributory negligence to the jury, and with that we agree. However, as the defendant county argues as its first proposition of law that there was some evidence of contributory negligence, and the failure to submit that issue was reversible error, we will discuss that question. “Contributory negligence, in its legal signification, is such an act or omission on the part of a plaintiff, amounting to a want of ordinary care, as, concurring or cooperating with the negligent act of the defendant, is a proximate cause or occasion of the injury complained of. To constitute contributory negligence there must be a want of ordinary care on the part of the plaintiff, and a proximate connection between that and the injury.” Beach, Contributory Negligence (3d ed. rev.), § 7, p. 7. The law relating to this question is found in section 25-1151, R. S. 1943, which, after providing that contributory negligence shall not bar a recovery in all cases, ends with the statement, “and all questions of negli — 18 — gence and contributory negligence shall be for the jury.” But, notwithstanding the provisions of this statute, the first question is one for the court to determine, i. e., whether or not the evidence as a matter of law is sufficient to warrant the submission of that issue to the jury. In Cotten v. Stolley, 124 Neb. 855, 248 N. W. 384, this court said: “Is the evidence in this case, which establishes that Alta Cotten was walking either upon the right-hand side of the pavement or upon the graveled' shoulder to said pavement, proof of contributory negligence on her part? There is no presumption of contributory negligence in this case.” “Held, That there was no proof of contributory negligence on the part of the plaintiff to submit to the jury.” City of Wahoo v. Reeder, 27 Neb. 770, 43 N. W. 1145. In Andersen v. Omaha & C. B. Street Ry. Co., 116 Neb. 487, 218 N. W. 135, this court said: “It follows that, where there is evidence of defendant’s negligence but no evidence of plaintiff’s contributory negligence, no instruction on comparative negligence should be given to the jury.” “The mere fact that contributory negligence may be pleaded as a defense does not justify the submission of that issue to the jury where there is no evidence to support it. Koehn v. City of Hastings, 114 Neb. 106, 206 N. W. 19.” Stephenson v. De Luxe Parts Co., 133 Neb. 749, 277 N. W. 44. “In every case, before the evidence is submitted to the jury, there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.” Fairmont Creamery Co. v. Thompson, 139 Neb. 677, 298 N. W. 551. In Allen v. Clark, 148 Neb. 627, 28 N. W. 2d 439, in which plaintiff was a guest in an automobile and was injured by being struck by another automobile, the — 19 — answer charged that the plaintiff, who was in the back seat, was negligent in remaining in the stalled car, when he had ample time to get out of the car. This court held that there was no evidence to support a defense of contributory negligence, and therefore it was reversible error to have submitted that question to the jury in instruction No. 11. “In determining whether a plaintiff has been guilty of contributory negligence as a matter of law, * * * where the evidence in a case fails to disclose negligence on the part of the-plaintiff, it is entirely proper for the trial court to refuse to submit to the jury the issue of contributory negligence.” 38 Am. Jur., Negligence, § 348, p. 1054. The true rule should be, for it is supported by a long line of opinions, that, ordinarily, contributory negligence is a question for the jury; but, where there is no basis in the evidence for a finding of contributory negligence, it is error to instruct on the subject and thereby to submit to the jury an issue which is outside the evidence. See Koehn v. City of Hastings, supra; Andersen v. Omaha & C. B. Street Ry. Co., supra; Guile v. Greenberg, 192 Minn. 548, 257 N. W. 649; Hammond v. Monmouth County, 117 N. J. Law 11, 186 A. 452; Hague v. Valentine, 182 Va. 256, 28 S. E. 2d 720; Adkins v. Raleigh Transit Co., 127 W. Va. 131, 31 S. E. 2d 775. In conclusion, all that the law required of plaintiff was that he exercise ordinary and reasonable care for his own safety under the. circumstances surrounding him. “The test always is, was he at the time of the accident using such care as a prudent man in such an occupation ordinarily uses, considering the time, place, condition of the highway, the weather, the vehicle used, and the presence of other persons ?’■’ 5 Blashfield, Cyclopedia of Automobile Law and Practice (Perm, ed.), § 3312, p. 441. , The accident in this case is one which could happen without any fault or negligence on the part of the driver — 20 — óf the car. There is nothing about the facts shown in the evidence which raises ány presumption of negligence, or want of care, on the part of the driver of the car, and the judgment is hereby affirmed. Affirmed.