(dissenting).
After the bus left the roadway, the driver was unable to steer back onto the roadway. The bus partially overturned in the ditch and Zens was injured.
Zens claims that the acts or omissions of the Railroad and the Township, in combination with the driver’s negligence, caused or permitted the ditch to be reconstructed 18' to 20' closer to the roadway, at a depth of 9', with a nonrecoverable slope of 2:1. Zens proved that this reconstructed ditch did not comply with the A.A.S.H.T.O. standards that then existed and argues that it was reversible error to permit evidence of later standards to go to jury. I agree. See discussion in majority opinion towards end of Issue I, the cases cited therein and SDCL 19-16-22.
Zens was entitled to have the trial court instruct the jury that the Railroad and the Township were jointly and severally liable for his injuries, if their acts or omissions, in combination with the driver’s negligence, produced Zen’s injury.
[Wjhere the independent tortious acts of two [or more] persons combine to produce an injury indivisible in its nature, either tortfeasor may be held for the entire damage — not because he is responsible for the act of the other, but because his own act is regarded in law as a cause of the injury.
Rowan v. Becker, 73 S.D. 273, 41 N.W.2d 836, 839 (1950) (citations omitted). As established in Zens I, the railroad is liable if it created:
A hazard or defect in a public highway or appurtenant thereto, which could fore-seeably cause or contribute to injury sustained by those using the public highway or reasonably straying therefrom.
Id. 386 N.W.2d at 479. Likewise, if the Township’s failure to insist in 1973 that the Railroad reconstruct the ditch consistent with the existing road building standards is not sufficient to cause the roadway to come “out of repair,” then the Township’s own actions in 1978 when it retrenched the ditch caused it to come “out of repair.” SDCL 31-32-10. Zens I at 478.
Considering these principles, it was error for the trial court to refuse evidence on the Township’s authority to condemn property for construction of roads. SDCL 8-2-1. Aberdeen Township, like all townships, has the power to condemn property. SDCL 8-2-1 provides as follows:
Each organized township in this state is a body corporate and has power:
(2) To acquire, by purchase, condemnation or other lawful means, rural property within or without the limits of the township, necessary or convenient for township purposes, or for the exercise of the powers granted to the township;
See, Town of Emery v. Chicago, Milwaukee, 35 S.D. 583, 153 N.W. 655 (1915); Town of Andover v. Cooper, 37 S.D. 258, 157 N.W. 1053 (1916). This refusal was especially prejudicial in connection with the trial court’s instruction that:
You are instructed that an owner of private property (including the defendant Railroad) which adjoins a township highway right-of-way is not obligated to make part of his or its property available, to the Township for the construction of wider roads or wider ditches.
The eminent domain ruling and the private property instruction acted in concert to tell the jury that the space available in the Township’s right-of-way would only permit construction of a ditch with a 2:1 slope. This was tantamount to a directed verdict for the Railroad and the Township and, as stated by Zens, “eviscerate[s] the Railroad’s duty [under] Zens I not to create a hazard or defect in a public highway or appurtenant thereto.” Id.
The majority opinion whitewashes this reversible error as non-prejudicial. I cannot do that. I would reverse and remand again for a fair trial.