
    Shafer, Appellee, v. Clymer, Appellant.
    
      (Decided February 27, 1939.)
    
      Mr. Clyde C. Beery, for appellee.
    
      Mr. Joseph F. Hogan, for appellant.
   Geiger, J.

This case is before this court on an appeal from an order of the court below wherein the plaintiff, appellee here, was awarded a judgment for $2,£00 for personal injuries alleged to have been suffered through the negligence of the defendant.

The amended petition alleges that for several weeks prior to July 4, 1936, the defendant, as a highway contractor, had been engaged in excavating and hauling dirt from a field located along the west side of state highway 127, a part of U. S. Route 30 South, in Marion township, Allen county. The hauling was by motor trucks. It is alleged that, while in the process of excavating and hauling, dirt fell and dropped off the trucks when they were in motion; that when they came out of the field where they were loaded, they dropped dirt upon the highway northwardly for several hundred feet from the exit of the field; that the dirt which dropped upon the highway formed a thin film upon a curve in the road, which when wet became slippery and created a hazardous condition for motorists; and that the defendant knew of the condition and failed to remove the film of dirt or dust so as to prevent the slippery and hazardous condition and failed to post warning signs.

It is further alleged that a short time prior to two a. m. on July 4 a rain fell and changed the film of dirt or dust on the curve into a film of slippery slime and caused the highway to become dangerous; that at that hour the plaintiff was riding as a guest in an automobile being operated in a northwesterly direction ou state highway 127; that when the car reached the curve it began to swerve and skid, due to the condition of the highway, and slid off the highway and came to rest on the right side thereof. Plaintiff claims damages for injury thereby resulting.

A general denial was filed. The trial proceeded and at the end of the plaintiff’s testimony and again at the end of all the testimony motions were made for a directed verdict which were overruled. The jury returned a verdict in favor of the plaintiff in the sum of $2,500.

The defendant assigns errors to the effect that the court erred in overruling his motions for a directed verdict, and that the verdict and judgment are against the weight of the evidence and excessive.

It is not often that we have a case in which so few legal problems are presented. The record sustains the allegations of the plaintiff as to the hauling by the defendant and as to the sandy clay falling from his trucks, which formed a light deposit of dust upon the highway, upon the curve where the accident occurred. The evidence also sustains the allegation that, because of the fall of a light rain when the plaintiff was being driven over the highway, the dust became slippery and presented a condition which caused the car in which the plaintiff was riding to skid and ultimately overturn, on account of which plaintiff received injuries. The defendant in his brief asserts that there is no evidence that an act of commission or omission of the defendant was the proximate cause of the accident, and urges that the accident would have occurred had the defendant never hauled dirt over the road; that the surface of the road was of Tarvia construction, smooth and worn, and so slippery, that an accident similar to that suffered by the plaintiff’s car could have occurred even though there had been no dust upon the highway as the result of the defendant’s operation. The defendant admits that dirt dropped from his trucks, but it is urged that the resulting condition of the highway was not the proximate cause of the plaintiff’s injury.

This matter was preeminently a question for the determination of the jury. We have examined the charge of the court and find it fair and accurate in every respect and we can detect no error of the court that would justify a reversal, and we can not find that the verdict was manifestly against the.weight of the evidence. The defendant also claims that the verdict was excessive. We have examined the testimony in reference to the injury suffered by the plaintiff and are of the opinion that the verdict was not excessive.

It is highly important that the highways of the state be kept in safe condition for travel, and if contractors are obliged to haul dirt over the highway they should exercise care to see that such operation does not render driving dangerous. This may require them to be more careful in loading trucks or more cautious in removing’ drippings, which might cause a slippery condition after a rain. Those so using’ the highway should give sufficient warning to drivers of cars of a possibly unsafe condition.

The judgment is affirmed.

Judgment affirmed.

Hornbeck, P. J., and Barnes, J., concur.  