A steam roller, permitted to stand in a highway at night without barrier or lights, has been held to constitute a "defect." 41 A truck standing in the highway where vehicles might run into it, was held to constitute a defect in the highway.42 The negligent driving of an automobile in a public highway by state or county employees, engaged in working on the highway, did not constitute a "defect" in the highway.43 Whether or not a street is reasonably safe is generally a question for the jury.44 § 1005. Injuries on highway pending "reconstruction or repair." In an action brought against a state under a statute making the state liable for injuries incurred on defective highways, but including an exception providing that the state should not be liable for injuries sustained by persons during the construction, reconstruction or repair of any highway, it was held that the state was not liable for injuries incurred by a motorist and his wife when they drove at night into an unlighted barrier placed by employees of the highway commission 150 feet away from a section of the road undergoing repairs; the statutory exemption not being limited to the particular part of the highway in process of repair.45 § 1006. Traffic lamp post at center of intersection. It has been held not to be negligence on the part of a city to maintain a lamp post at the center of the intersection of streets for the purpose of traffic regulation and for lighting, where there was ample space on all sides for reasonable use of the streets, and the post was kept adequately lighted and visible.46 In an action to recover for injuries sustained by plaintiff when he drove his machine into collision with an unlighted traffic post at a street intersection, the evidence showed that the defendant had constructed a traffic post in the center of its street at the point of the 43 Minshell v. State, 204 N. Y. Supp. 472 (1923); Douglass v. County Court, 90 W. Va. 47, 110 S. E. 439, 22 A. L. R. 585 (1922). Contra. Moss v. Aiken County, 114 S. C. 147, 103 S. E. 520 (1920). In Faulkner v. Aurora, 85 Ind. 130, 44 Am. Rep. 1, where plaintiff was injured by coasters on a public street, which sport, although in violation of a city ordinance, was carried on publicly by crowds in the presence of the police, and was obviously dangerous to users of the street, it was said that it was obvious that "the injury did not result from any defect in the highway, but by the acts of those improperly and unlawfully using the highway. The court said: "We are not aware of any precedent for holding an il legal use of the highway by men, animals, vehicles, engines, or any other object, while movable and actually being moved by human will and direction, and neither fixed to, nor resting on, nor remaining in, one position within the traveled part of the highway, to be a defect or want of repair for which the city or town is liable." That negligently permitting the riding of bicycles upon the walks of a public street does not render the street defective, see Custer v. New Philadel phia, 11 Ohio C. D. 9, 20 Ohio C. C. 177. 44 Commissioners v. Gaylor, 140 Md. 375, 117 Atl. 864 (1922); Walters v. Seattle, 97 Wash. 657, 167 Pac. 124 (1917). 45 Lemon v. Com., 236 Mass. 599, 129 N. E. 382 (1921). 46 Fairbury v. Barnes, 228 Ill. App. 389 (1923). accident; that the upper part of the traffic post had been broken off, leaving the concrete base or abutment; that the city had no light upon or barricade around the concrete block; that the concrete block was almost identical in color with the street itself, and ordinarily was marked by the light on top of the traffic post; that the accident occurred during the night when there was no such light; that there were other street lights on the four corners; and that plaintiff was driving his automobile cautiously, but did not see the obstruction in time to avoid it, while passing to the left of an automobile being driven in the same direction across street intersection. It was held that the evidence justified a verdict in favor of the plaintiff.47 A city may be held liable for injuries to an automobile passenger incurred in a collision with a concrete post maintained by the city in the traveled portion of a street.48 § 1007. Highways beyond corporate limits. Ordinarily a city is not liable for injuries caused by defects in highways outside its corporate boundaries, and such liability is not imposed by a statute authorizing cities to appropriate or contribute money for the improvement and maintenance of highways beyond its boundaries and leading into it.49 §1008. Defect outside prepared or traveled portion of highway. The act of traveling for one's own convenience outside of the way prepared for the public, has been held to constitute negligence as matter of law; and although there be a defect or obstruction within the limits of the highway, if it is not in the traveled part of the road or so connected with it as to affect the safety and convenience of those using the traveled bed, the municipality is not responsible for an injury sustained by one in consequence of it. Whether or not a defect or obstruction is so connected with the highway as to affect the safety or convenience of those using that part prepared for public travel, when doubt exists, is a question for the jury.50 The rule has also been laid down that the duty of a city is not discharged by keeping the traveled portions of its streets free from obstructions and defects, and that this duty requires it to use ordinary care to protect persons, lawfully using its streets in a reasonably prudent manner, from dangerous places near such traveled portions although outside of it.51 § 1009. Notice on part of municipality of defect. In order to render a municipal corporation liable for injuries due to a defective highway it is essential that it have notice or knowledge of the defective condition. This knowledge may be actual or constructive. Actual notice means information given to or acquired by one in the employ of the corporation with authority over the highway, or whose duty it is to discover such defects and remedy them or cause them to be remedied. Constructive notice means the existence of such facts or circumstances connected with the continued existence of the defective condition that the corporation or those having authority over the highway must have known in the exercise of reasonable inspection that it was in that condition.52 The questions of what constitutes notice to a municipality of a dangerous condition of one of its highways, and when it is presumed to have such notice, are rather foreign to the scope of this work and will not be treated herein.53 § 1010. Rights and duties of motorists in use of highways. A motorist must exercise ordinary care in the use of the public highways for his own safety. "Ordinary care," as here used, is such as prudent men in such occupation ordinarily use, taking into consideration the time, place, condition of the highway, weather, the character of the instrumentality employed, the presence of other travelers or vehicles upon the streets, the extent to which the same is lighted, and many other facts and circumstances often present and necessary to be considered.54 The common law requires that one motoring in a public highway exercise reasonable care for the safety of himself, his car, and other occupants of the car.55 It has been held that, "When a person is injured in broad daylight by a defect in the highway which is easily observable, a presumption of contributory negligence arises, and the burden is upon the plaintiff to show conditions outside himself that prevented him from seeing the defect, or which would excuse his failure to observe it." 56 A truck driver who, in daylight, drove into a hole five feet deep and two and a half feet wide, which was plainly visible, was held guilty of contributory negligence.5 57 One driving an automobile along a city street is not as a matter of law negligent in not seeing an obstruction negligently left unguarded, although looking in its direction while approaching it, he being obliged to turn out and pass a horse-drawn vehicle, thereby coming upon such obstruction.58 A motorist is not negligent as matter of law because he drives on a highway known to him to be defective.59 52 Huyler v. New York, 160 App. Div. 415, 145 N. Y. Supp. 650 (1914). Work done under permit from city, city has notice of defective condition. Spiker v. Ottumwa, Ia. 186 N. W. 465 (1922). 53 This subject is fully treated in McQuillin, Mun. Corp., § 2807 et seq. 54 Spiker v. Ottumwa, Ia. 186 N. W. 465 (1922); Kendall v. Des Moines, 183 Ia. 866, 167 N. W. 684 (1918). 55 Quarles v. Gem Plumbing Co., 18 Ga. App. 592, 90 S. E. 92 (1916). 56 Bean v. Philadelphia, 260 Pa. St. 278, 103 Atl. 727. 57 Kimmelman v. McGovern, 199 N. Y. Supp. 76 (1923). 58 Klopfenstein v. Union Tr. Co., 109 Kan. 351, 198 Pac. 930 (1921). 59 Raymond v. Sauk County, 167 Wis. 125, 166 N. W. 29 (1918). A traveler is not held to as strict an accountability if he is injured by an obstruction in the traveled part of a highway as he would be were he injured by an obstruction outside of the traveled part, where he may anticipate meeting with obstructions.60 Ordinarily the fact that the negligence of the driver of an automobile concurs with that of a city in causing injury to an occupant of the automobile, who was free from negligence, does not affect the liability of the city.61 On the other hand, it has been held that where the negligence of the driver of a private automobile is a concurring cause with a defect in the highway in producing an injury to the occupant, the latter cannot recover.62 § 1011. Driving on road with knowledge that it is being reconstructed. A motorist who drove on a highway when he knew that it was in process of reconstruction and unfit for travel, and when necessity did not require that he use it, was held to be negligent. It was also held that, knowing of the condition of the road, he could not complain that there were no barriers or lights to warn travelers of its condition.63 § 1012. Racing and testing automobiles in street. A city was held liable for injuries resulting from the racing and testing of automobiles in its streets at an excessively high rate of speed, which the city permitted to be done. This on the theory that the streets were then not reasonably safe for ordinary traffic and use. In part the court said: "It is suggested by the city that the dedication of the public ways to automobile racing lay wholly outside of the powers of the corporation, for which act the corporation is not liable. That is another way of saying the corporation is liable if the authorities act within the law, and is not liable if the authorities act without the law. The prime duty of any city is to keep its streets clear for the public travel. The incumbrance of the streets with automobiles running at a dangerous rate of speed, just for practice, is a violation of that prime duty. To answer that the mayor and council had no authority to authorize such a use of the streets, is to admit the wrong. "It is true there are decisions from other jurisdictions which sustain this view of the respondent, but they do not commend themselves to our judgment, and they do not express the general rule of law. We are of the opinion that the street thus dedicated by the authorities to a hazardous use was not then reasonably safe for prime street purposes. 64 § 1013. Joy riders. "When two or more persons voluntarily drive or ride an automobile upon a public highway at a dangerously high 60 Blankenship v. King County, 68 Wash. 84, 122 Pac. 616. 61 Gary v. Geisel, 58 Ind. App. 618, 108 N. E. 876 (1915). 62 Lauson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629, 25 L. R. A. (N. S.) 40, 135 Am. St. Rep. 30 (1909). 63 Buckingham v. Commary-P. Co., 39 Cal. App. 154, 178 Pac. 318 (1918). 64 Burnett v. Greenville, 106 S. C. 255, 91 S. E. 203 (1917). rate of speed merely for the purpose of enjoying the exhilarating and pleasurable sensations incident to the swirl and dash of rapid transit, they may properly be said to be engaged in joy riding. Such joy riders not only assume the risks of danger attendant upon the sudden and violent movements of the car, but also such as arise from the inability of the driver, when traveling at a high rate of speed, to make short quick stops to avoid collisions, or defects in the street, or direct the car at bends or curves in the road so as to keep in the traveled highway." 65 § 1014. Intoxicated person. The mere fact that one goes on the highway in an intoxicated condition, and is injured by falling over an embankment, is not conclusive that the negligence of the municipality was not the proximate cause of his death, or that his own contributory negligence was the proximate cause of the accident.66 In an action where a traveler seeks to recover for injuries incurred on a defective highway, the fact that he was intoxicated, and the degree of such intoxication, at the time of the injury, is a relevant fact, bearing on the question of contributory negligence. "While the status of the parties is not affected by the drunkenness of one of them in a case of this character, unless by reason of such intoxication the one injured failed to exercise such care for his own safety as might be ordinarily expected of a sober person of ordinary prudence under similar circumstances, and but for such failure on his part the injury would not have happened, yet the jury may consider the fact of intoxication as a circumstance along with other evidence. 67 § 1015. Street made slippery by application of tar and oil. A motorist was held to be contributorily negligent in driving in daylight onto a portion of a highway made slippery and dangerous by an application of tar and oil by the county authorities. Hence, he could not recover for resulting injuries.68 There was evidence as follows: The plaintiff, a milkman, was watering his horse at a fountain in the street between 8 and 9 o'clock of a misty morning, when an automobile carefully driven came upon the street and, by reason of the extremely slippery condition of its surface due to oiling on the preceding afternoon by those in charge of the defendant's streets, began to skid, could not be controlled, and collided with the plaintiff's milk wagon, whereby the plaintiff was injured and subsequently died. In sustaining judgment for plaintiff the court said: "The liability of the defendant is founded on its failure to keep its streets reasonably safe for travel and to remedy a condition likely to be dangerous. That might be found to exist quite independent of its liability for negligence of its superintendent of streets. If the rain of the night intervening between the oiling and the accident was the 65 Winston's Admr.1 Henderson, 179 Ky. 220, 200 S. W. 330 (1918). 67 Winston's Admr. v. Henderson, 179 Ky. 220, 200 S. W. 330 (1918). 68 Raymond v. Sauk County, 167 Wis. 125, 166 N. W. 29. (1918).". |