Opinion
No. 51393.
November 17, 1964.
COUNTIES: Action for damages — negligence in employment of incompetent person — governmental immunity. An action by a railroad against the county for damages, alleging negligence in employment of a person known to be incompetent to operate a road grader that collided with plaintiff's train, is barred by the doctrine of governmental immunity.
Appeal from Warren District Court — HOBART E. NEWTON, Judge.
Action for damages against defendant, claiming negligence by Warren County in hiring an incompetent operator of a road grader, which ran into one of plaintiff's trains and causing heavy damage. Trial court dismissed petition on basis of governmental immunity. Plaintiff appealed. — Affirmed.
Gamble, Read, Riepe, Martin Webster, of Des Moines, for appellant.
Herrick, Langdon, Sandblom Belin and James A. Lorentzen, all of Des Moines, for appellee.
Appellant alleges one of its trains was struck and derailed by a road grader driven by an employee who had lost a limb and was incompetent to run the grader. His incompetence was the proximate cause of the collision, from which plaintiff suffered extensive damages.
The case is controlled by the recent decision of this court in Boyer v. Iowa High School Athletic Assn., 256 Iowa 337, 127 N.W.2d 606.
Opinion affirming this case, and in dissent, would be similar, and in many instances identical, with affirmance and dissent in the above entitled case. Such repetition would serve no useful purpose.
GARFIELD, C.J., and THOMPSON, LARSON, SNELL and STUART, JJ., decide in favor of affirmance of trial court.
MOORE, THORNTON and PETERSON, JJ., dissent, and request reversal.
HAYS, J., not sitting.
The case is therefore — Affirmed.