Simonsen v. Thorin

Nebraska Supreme Court · Torts

TortsNegligenceHighway obstructionDuty to warnNewly discovered evidenceExcessive verdictpublic highwaystreet obstruction

Facts

Plaintiff was injured while riding in an automobile driven by her husband when their car collided with a trolley pole lying in the street. The pole had been broken and knocked into the street by defendants' delivery truck, driven by defendants' son, and the case was tried on the theory that the initial collision with the pole was not caused by defendants' negligence. After the pole fell into the street, the truck driver busied himself with removing his vehicle and left the scene rather than remaining to remove the obstruction or warn approaching travelers. At the time plaintiff's car struck the pole, the obstruction remained in the street and no one was warning traffic.

Issue

When a person, without negligence and involuntarily, causes an obstruction to be placed in a public street, does that person have a duty to remove the obstruction or warn approaching travelers? Also, did the trial court err in denying a new trial based on newly discovered evidence and in allowing a $5,000 verdict to stand?

Rule

Whoever places an obstruction in a public highway, even by an involuntary act and without negligence, is under an obligation to remove the obstruction from the highway or to use ordinary care to warn traffic of the danger it creates. Violation of the statute forbidding one to cause to be left on a public street any broken substance liable to injure persons or vehicles is evidence of negligence. A new trial will not be granted for newly discovered evidence unless it would probably change the result, and not when it would merely discredit a witness on a matter not affecting liability.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

On a snowy evening in Omaha, Caleb Morton was carefully driving a delivery van when black ice caused the van to slide into a roadside decorative stone pillar. The impact toppled part of the pillar into the travel lane. Caleb walked two blocks to call his dispatcher and left no one at the scene; minutes later, Nina Park's car struck the debris.

If Nina sues Caleb for negligence, which is the strongest argument for imposing a duty on Caleb?

Explanation. The majority rule is that one who, while lawfully using a highway, causes an obstruction to be placed there in a manner dangerous to traffic must use ordinary care to prevent injury, even if the obstruction was created involuntarily and without antecedent negligence. Liability rests on leaving the obstruction without removal or warning, not on strict liability, ownership, or intentional placement. (Derived from Simonsen v. Thorin (n.d.).)