Opinion
No. 5535.
June 28, 1930.
APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.
Action for damages. Judgment for defendant. Affirmed.
A.L. Morgan, for Appellant.
The fact that a road is denominated a state highway and is to be maintained at state expense does not give the state exclusive jurisdiction over said road, nor does it relieve the highway district from responsibility in maintaining said road and keeping it clear of dangerous obstructions. ( Longstreet v. Mecosta County, 228 Mich. 542, 200 N.W. 248; Maynard v. Westfield, 87 Vt. 532, 90 Atl. 504.)
Taking over of a road by the state is merely for the purpose of permitting the state to improve and maintain such road in accordance with the state standard, and does not affect the liability of the highway district. ( City of McMechen v. Wheeling Traction Co., 90 W. Va. 24, 110 S.E. 469.)
Cox Martin, for Respondent.
No obligation for the maintenance of state highways having been imposed upon highway districts by statute, and no such obligation having been assumed by the Lewiston Highway District by contract, the rendering of a judgment against such highway district for breach of duty committed by the state would be a taking of property without due process of law, since the judgment could only be paid by a levy of taxes upon property within the district. (U.S. Const., 14th Amendment, sec. 1; Const., art. 1, sec. 13.)
Where the state is charged with the duty of maintaining state highways, local administrative bodies are not liable for the state's breach of duty. ( Cain v. Meade County, (S.D.) 223 N.W. 734; Weiher v. Phillips, 103 Ohio St. 249, 133 N.E. 67; Younts v. Avon Lake Village, 19 Ohio App. 182; Allen v. Village of Holley, 234 N.Y. Supp. 471; Pooler v. Burton, 40 R.I. 249, 100 Atl. 465; Clark v. Allegheny County, 260 Pa. St. 199, 103 Atl. 552; McCormick v. Allegheny County, 263 Pa. St. 146, 106 Atl. 203; Murphy v. Norfolk, 94 Conn. 592, 110 Atl. 62; Hanigan v. Minnehaha County, 47 S.D. 606, 201 N.W. 522; Gratney v. Board of Commrs., 111 Kan. 160, 207 P. 209.)
This is an action in damages to recover $600, resulting from a collision between plaintiff's truck and a road grader being operated by the state in highway repair work. The negligence upon which the action is based consists in the grader being driven upon the left side of the road, and also in the omission of danger signals or warnings to travelers on the road.
The collision was on the Lewiston Hill within the Lewiston Highway District. The state had taken over such control, operation and maintenance of this highway as is authorized by C. S., sec. 1577. For ten years the state had exclusively maintained this highway.
We do not deem it necessary to minutely define the control and jurisdiction remaining in local highway districts over roads within their boundaries after being thus taken over by the state.
In this case negligence is the gist of the cause of action. The negligence complained of was the negligence of state employees lawfully upon the road in the act of repairing it. They were operating state owned implements. The highway district did not hire them. It could not discharge them. It had no control whatever over them. No authority is cited, and we are unable to conceive of a theory whereby the negligence of these employees can be imputed to the highway district. In this state highway districts may owe some duty to the public upon highways within their boundaries which have been taken over and are maintained by the state. Be that as it may, they are not liable for the negligent acts of the state's employees in performing the state's duty. ( Weiher v. Phillips, 103 Ohio St. 249, 133 N.E. 67.)
The judgment is affirmed, with costs to respondents.
Givens, C.J., and Lee and Varian, JJ., concur.