(dissenting): I am confident that our legislature in enacting the statute R. S. 1931 Supp. 68-419, authorizing recovery of damages under certain circumstances against the highway commission by reason of a defect in a bridge, culvert, or state highway, following very much the statute R. S. 68-301 relating to the liability of counties and townships for similar defects, never had in mind that the ordinary depressions or holes, so common in sanded or graveled highways, would be regarded as defects which would form the basis *633of recovery. It is a matter of such common knowledge, and hence necessarily known to all who use our highways, that sanded or graveled highways have uneven surfaces. For a variety of reasons the sand is thicker in some places than others. Sometimes it mixes well with the earth or clay on which it is placed, and at other times it does not. Uneven surfaces and holes are constantly occurring because of the traffic and the texture of the roadbed, and this is true no matter how well they are constructed and maintained. To hold such depressions as defects within the meaning of this law makes the construction and maintenance of such roads almost prohibitive. In this case the uneven surface of the roadbed, indicating a depression or hole, was visible to the driver of .this car for from 100 to 150 feet. The jury specifically found there was ample room for him to drive on the highway without running into it. However, he was not looking; he did not see it. In my judgment, to permit money raised to improve our highway system to be paid out in damages in cases such as this, is unauthorized.
Smith and Thiele, JJ., join in this dissent. Hutchison, J., not sitting.