(dissenting).
I am unable to concur.
Following a one car accident plaintiffs commenced separate actions against Hutchinson County alleging the county negligently failed to replace a "curve" or "warning" sign at a dangerous curve on a county highway. Their complaints were *67dismissed on the merits and with prejudice. In my opinion the complaints allege a cause of action and the cases should be heard on the merits.
As there is no common law right of action against a county in this state for negligent maintenance of a highway the following statutory provision provides the exclusive remedy:
"In case any highway, culvert, or bridge shall become in whole or in part destroyed or out of repair by reason of floods, fires, or other cause to such extent as to endanger the safety of public travel, it shall be the duty of the governing body or board under statutory duty to maintain such highway, culvert, or bridge upon receiving notice thereof to cause to be erected for the protection of travel and public safety, within forty-eight hours thereafter, substantial guards over such defect or across such highway of sufficient height, width, and strength to guard the public from accident or injury and to repair the same within a reasonable time thereafter. * * *
"Any person who shall sustain injury to person or property by reason of any violation of this section shall have a cause of action against the county, township, city, or town as the case may be for such damages as he may have sustained * * SDC 1960 Supp. 28.0913.
Obviously, the main obligation of a county under this statute is to repair all defects in a county highway which endanger the safety of public travel. Incidentally the statute also imposes a secondary duty upon the county to erect temporary guards over defects, where needed, until repairs are made.
The critical question in these cases is whether a county's failure to replace a warning sign at a dangerous curve in a highway under its jurisdiction renders the highway "out of repair by reason of * * other cause" within the purview of *68the above statute. If so, the county was obligated to repair or replace the same and the incidental duty of erecting guards over defects in highways simply has no application to such a defect.
It has previously been pointed out that our present statute (SDC 1960 Supp. 28.0913) is more restrictive in nature than originally provided in Sections 8589 and 8590, Rev.Code of 1919, which allowed recovery for failure "to keep the public highways, culverts and bridges in such condition as to render them safe, passable and free from danger of accident or injury to persons or property while in the lawful use thereof". Commenting on this restrictive revision in Reaney v. Union County, 69 S.D. 392, 10 N.W.2d 762, the Court said: "The broad general duty to maintain a reasonably safe highway has been eliminated, and the specific duty to guard and repair a damaged or destroyed highway has been retained".
The Court went on in the Reaney case to conclude a county's failure to install adequate signs warning of danger incident to a sharp curve leading to a narrow approach to a bridge and failure to provide a substantial guardrail on the bridge approach were not actionable derelictions of duty within the meaning of SDC 28.0913 as "The highway did not become defective in the described respects because it had 'become * * * destroyed or out of repair by reason' of any cause. These defects were inherent in the design or plan of the highway the county provided the public, and we conclude that the present statute does not afford plaintiff a remedy for injuries proximately caused thereby." For the same reasons a county's failure to install adequate signs warning of danger incident to a sharp curve on a steep hill was not an actionable violation of duty under our statute. Dohrman v. Lawrence County, 82 S.D. 207, 143 N.W.2d 865. See also Mullins v. County of Wayne, 4 Mich.App. 359, 144 N.W.2d 829; Clouse v. County of Dawson, 161 Neb. 544, 74 N.W.2d 67, 55 A.L.R.2d 991.
Significantly, the warning signs involved in the Reaney and Dohrman cases had never been in existence so their ab*69sence could not be considered a defect which damaged, destroyed, or caused the highway to be out of repair. In the present action it is alleged a warning sign incident to the dangerous curve had originally been installed and maintained. During some road construction the warning sign was removed and never replaced.
Unless the dangerous curve was eliminated by the road construction the county was under a duty to replace the warning sign as directed in SDC 1960 Supp. 28.0901:
"The public board or officer whose duty it is to repair or maintain any public highway shall erect and maintain at points in conformity with standard uniform traffic control practices on each side of any sharp turn, blind crossing, or other point of danger on such highway * * * a substantial and conspicuous warning sign, which sign shall be on the right hand side of the highway approaching such point of danger ¥ ¥
It may be assumed that public authorities in the discharge of their duties under this statute have a measure of discretion in determining what curves, crossings, and other points of danger require a warning sign and failure to erect or install one is not ordinarily actionable, Reaney v. Union County and Dohrman v. Lawrence County, supra. However, in the present action in the exercise of its governmental discretion the county determined the curve in question was dangerous and erected a warning sign. It then became a physical and integral part of the highway. As an appurtenant part of the highway the county had a continuing duty to maintain and keep the sign in reasonable repair for the safety of public travel, O'Hare v. City of Detroit, 362 Mich. 19, 106 N.W.2d 538. We may assume, of course, from the allegations of the complaint that the dangerous curve continues to exist and the county had actual or constructive notice of the defect. The situation is not unlike a warning, danger, or stop sign that has been knocked over, fallen down, destroyed, or removed by vandals. A negligent failure to repair *70or replace the same after notice of the defect would cause a highway to be "out of repair" within the contemplation of our remedial statute.
Because of differing statutory provisions authorities from other jurisdictions are not particularly helpful, but see Annot., "Duty of public authorities to erect and maintain warning signs or devices for curves in highway" 55 A.L.R.2d 1000; and cf. Irvin v. Padelford, 127 Cal.App.2d 135, 273 P.2d 539; Brown v. State Highway Commission, Kan., 444 P.2d 882; Wagshal v. District of Columbia, D.C.App., 216 A.2d 172; Resnik v. Michaels, 52 Ill.App.2d 107, 201 N.E.2d 769; Johnston v. City of East Moline, 405 Ill. 460, 91 N.E.2d 401; Dudum v. City of San Mateo, 167 Cal.App.2d 593, 334 P.2d 968; Firkus v. Rombalski, 25 Wis.2d 352, 130 N.W.2d 835; and Lyle v. Fiorito, 187 Wash. 537, 60 P.2d 709.
I would reverse.
HOMEYER, J., concurs in dissent.