A bystander is under no legal obligation to remove or guard a pole. In such a case, the mere failure to remove obstructions placed in the highway by another does not render one liable for injuries caused thereby. But when one engaged in the lawful use of the highway causes an obstruction to be placed upon it in such a manner as to be dangerous to traffic, he must use ordinary care to prevent injury to others where he knows that the obstruction is calculated to do injury to travelers upon the highway. The negligence in such a case consists of having placed an obstruction upon the street, and leaving it in such a manner as will be dangerous to others using the street.
Plaintiff passenger sustained injuries when the car driven by her husband collided with a trolley pole obstructing the street. The pole had been broken and knocked into the street by a delivery truck owned and used in defendant store owner’s grocery business. Defendant store owner’s son was driving the vehicle, and he fled the scene of the accident. At the time of the collision, the obstruction was in the street and no one was warning approaching travelers of the danger of the obstruction. Plaintiff sued defendant store owner and his son for damages for personal injuries, and the trial court found for plaintiff. On appeal, the court affirmed the trial court’s judgment.
Was it the duty of defendants to remove the barrier which they knocked into the street while driving or to remain at the scene of the accident and warn travelers upon the street of the danger?
The operation of defendants’ delivery truck was their voluntary act and in the course of such operation they caused the obstruction to be placed in the street. Therefore, they could not be said to be in the position of a bystander who was under no legal obligation to remove or guard the pole. Neb. Rev. Stat. § 39-1025 (Reissue 1929) made it unlawful to leave any substance on a public road or street that would injure any person or vehicle. A violation of that statute was evidence of negligence. Defendants were bound to know that travelers were passing along the street at the time of the accident and that they were liable to be injured as a result of the obstruction. They had a positive, continuing duty to the public traveling the street to warn of the danger.