Smith v. Zimmer

MR. JUSTICE SANNER

delivered the opinion of the court.

The respondent, plaintiff below, while driving, on the night of October 11, 1909, upon what is known as the Elk creek road— a public highway in road district No. 1, Lewis and Clark county —was precipitated into an unguarded washout, and sustained personal injuries. To recover damages for such injuries, he brought this action against the appellant, who was supervisor of district No. 1, and also against the persons who were at that time county commissioners of Lewis and Clark county, grounding his action upon negligent failure to repair and negligent failure to warn the public of the danger. In consequence of the decision of this court upon a former review of this case (Smith v. Zimmer, 45 Mont. 282, 125 Pac. 420), the county commissioners ceased to be defendants, and the action proceeded against the supervisor alone. The trial was to the court, with a jury, who, by their verdict, awarded the respondent damages in the sum of $2,000.' Judgment upon the verdict was duly entered, and, from that judgment, as well as from an order denying appellant’s motion for new trial, these appeals are prosecuted.

So far as the liability of appellant is concerned, the facts disclosed by the present record do not substantially differ from those stated in the former decision by this court. Further reference to them, therefore, need not be made, save to add that the [1] evidence shows the washout to have occurred early in June, 1909; that appellant was promptly advised of it; that he provided no barrier or warning of any kind; that the respondent did not know of the washout; and that he could not see it at the time he was injured. In the former decision we said: “Under the facts appearing in the evidence, a prima facie ease of liability is made against the defendant Zimmer for failure to make the repairs by removing the obstruction, or, in ease he could not do so, for failure to warn the public of the existing condition. * * * At the trial * * * the defendants may be able to show that the conditions were such that, with the means at their disposal, they were unable to make the necessary repairs;1 # * * but even this would not excuse the omission to take suitable measures to give notice of the obstruction or to provide suitable barriers to prevent a traveler from being injured by it, if the facts show that such was the ease.”

Sixteen errors are assigned presenting these questions, which we answer in their order:

1. Whether two certain questions in the cross-examination of the witness Doty were properly permitted. We think they were [2] properly permitted, because the door was opened for them in the direct testimony of this witness.

2. Whether certain instructions proposed by appellant should have been given. We think not. These instructions proceed [3] on the theory that exoneration of the appellant would follow if his failure to repair was due to lack of funds; they ignore the fact that, under the former decision of this ease, it was the appellant’s duty, regardless of funds, to suitably warn the public, and, if necessary in the exercise of due care, to barricade the washout.

3. Whether certain instructions, given at the instance of respondent, were justified. We think they were justified by the former decision of this case., All of them may not have been necessary; but objection was not made upon the ground of repetition.

4. Whether the appellant’s motion to direct a verdict, and his later motion for a new trial, should have been sustained. We are not favored with any argument directed specifically to the denial of these motions; but the testimony presented a case for the jury, under the former decision of this court. The record does not disclose that any imperative reason was presented to the district court for granting a new trial.

The judgment and order overruling the motion for new trial are therefore affirmed,

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.