Opinion
No. 41235.
Filed May 10, 1978.
Appeal from the District Court for Gage County: WILLIAM B. RIST, Judge. On motion for rehearing. See ante p. 225, 263 N.W.2d 442, for original opinion. Motion for rehearing overruled.
M. J. Bruckner and John V. Hendry of Marti, Dalton, Bruckner, O'Gara Keating and Frederick L. Swartz, for appellants.
Paul L. Douglas, Attorney General, Harold S. Salter, and John R. Thompson, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.
SUPPLEMENTAL OPINION
The following sentence in our original opinion is withdrawn: "To the extent that Farmers Co-op Co. v. County of Dodge, 181 Neb. 432, 148 N.W.2d 922, and Kudrna v. Sarpy County, 125 Neb. 83, 249 N.W. 87, are in conflict they are overruled." Those cases are distinguishable from this case on their facts, and it is unnecessary to overrule them.
The following paragraph is also withdrawn: "The State also contends that if there was any defect in the shoulder at the point of the accident here it was a part of a general or overall condition of the highway and not a spot or localized defect and was, therefore, excluded by the statute. That contention is not supported by the evidence."
In the event the District Court, upon reconsideration of the evidence in this case, should find that the State was negligent in constructing and maintaining the shoulder of the highway at the point of the accident here, then the court should proceed to find and determine whether the defective condition of the shoulder, if any, was a spot or localized highway defect, or was a general or overall condition of the highway within the meaning of section 81-8,219(2), R.R.S. 1943.