Opinion
No. 34969.
May 11, 1942. Suggestion of Error Overruled June 8, 1942.
1. HIGHWAYS.
Where highway under construction had not been completed by contractor or accepted by proper public authorities, it was only required that highway should be kept and maintained in a reasonably safe condition for the use of those traveling thereon and exercising a vigilant caution to keep a constant lookout for obstruction incident to progress and completion of work remaining to be done.
2. HIGHWAYS.
Contractor engaged in constructing highway was not an "insurer" of the safety of the traveling public, but was required only to exercise reasonable care and diligence.
3. AUTOMOBILES.
Contractor having highway under construction could not be held liable for injuries sustained by motorist when, because of contractor's alleged negligent failure to maintain signs warning of T junction with old highway, motorist was unable while driving at night to see junction in time to make the turn or stop automobile, where there was no showing that contractor knew or was affected with constructive notice that warning signs previously erected were down at the time of accident, if they were down.
APPEAL from circuit court of Marion county, HON. J.C. SHIVERS, Judge.
Patterson Hobbs, of Jackson, and Rawls Hathorn, of Columbia, for appellant.
At the time of appellee's accident and injury, sufficient time had not elapsed between the time that all signs and warnings were up and in their proper places and the time of appellee's accident to impute negligence to appellant for a failure to maintain signs and warnings.
One is not chargeable with negligence in failing to discover and remedy a defect or danger in his property which he could not have discovered by the exercise of ordinary care, or which has not existed for a sufficient time to charge him with the duty of discovering it.
45 C.J. 659, 660.
There certainly can be no higher duty resting upon a contractor to warn the public using a highway under construction against any dangers either incident to construction or otherwise than the duty which rests upon the master to warn his employee, and we doubt very seriously whether or not the duty is as great. The master has no duty to warn his servant of obvious dangers.
39 C.J. 503.
We submit that the peremptory instruction should have been given as requested by appellant for the reason that the proven facts in support of appellee's demand do not meet or measure up to the standard required by this court for submission of a case to the jury.
When all the testimony in behalf of a party litigant is taken as a whole and is considered as if undisputed by the other party, and that testimony is reconcilable in essential features with the material facts which are undisputed, and when so reconciled, and taken together with the undisputed facts, if of such a real and substantial nature that impartial men of sound judgment could reasonably believe it, and prudently act thereon, and thence it furnishes a factual basis to sustain the case of the party, a peremptory instruction should not be granted against him. But if the testimony of the party does not measure up to this established standard, it is insufficient and therefore is but a scintilla as that term is to be understood in our law.
Thomas v. Williamson, 185 Miss. 83, 187 So. 220; National Labor Relations Board v. Columbian E. S. Co., 59 S.Ct. 501, 83 L.Ed. 660; Truckers Exchange Bank v. Conroy, 190 Miss. 242, 199 So. 301; Jakeup v. Lewis Grocery Co., 190 Miss. 444, 200 So. 597.
R.H. J.H. Thompson, of Jackson, for appellant.
Where highway contractor who constructed new road joining city avenue at a 120 to 127 degree angle failed to place any warning sign at or near the intersection, contractor was not guilty of negligence contributing to injuries sustained by motorist whose automobile, driven at a speed of from forty to forty-five miles per hour, failed to make the curve, and no recovery could be had against contractor by motorist, whose own negligence in not having automobile under proper control as he entered curve was proximate cause of accident.
Mississippi Code of 1930, Sec. 511; C.C. Moore Construction Co., Inc., v. Hayes, 119 F.2d 742.
It is the duty of a driver to operate his automobile at such speed as to be able to stop within the range of his vision.
Completed and accepted roads are not required to be in such condition as to insure the safety of reckless drivers, and a driver must keep his automobile under control, and a driver travelling on usable portion of highway under construction will be presumed to have seen what he should have seen in performance of his obligation to keep a vigilant lookout.
Graves v. Johnson, 179 Miss. 465, 176 So. 256.
See, also, Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487; Graves v. Hamilton, 184 Miss. 239, 184 So. 56; Central Paving Construction Co. v. McCaskin, 183 Miss. 814, 184 So. 464.
Henry Mounger, Hall Hall and Bernard Callender, all of Columbia, for appellee.
The question of appellant's negligence, of appellee's contributory negligence (if any), and of what was the proximate cause of this accident and injury was for the jury to determine, under the conflicting evidence in this record; and we submit that these questions have been answered against appellant.
See City of Vicksburg v. Harralson, 136 Miss. 872, 101 So. 713; McWhorter v. Draughn, 137 Miss. 515, 102 So. 567; Graves v. Johnson, 179 Miss. 465, 176 So. 256; Myers v. Sanders, 189 Miss. 198, 194 So. 300; Morgan Hill Paving Co. v. Fonville, 119 So. 610; Hopkins v. Miller, 182 Miss. 861, 183 So. 378; Owens v. Fowler, 32 F.2d 238; M. O.R.R. Co. v. Johnson, 165 Miss. 397, 141 So. 581; Keith v. Y. M.V.R.R. Co., 168 Miss. 519, 151 So. 916; 2 A.L.I. Restatement, "Torts," p. 997.
See, also, Holmes v. T.M. Strider Co., 186 Miss. 380, 189 So. 518; Life Casualty Ins. Co. v. Curtis, 174 Miss. 768, 165 So. 435; Trinidad Asphalt Mfg. Co. v. McIntosh, 100 F.2d 310.
Argued orally by H.W. Hobbs and C.V. Hathorn, for appellant, and by Lee D. Hall, for appellee.
The appellee, Nail, brought this action in the Circuit Court of Marion County against the Dunn Construction Company, Inc., appellant, to recover damages for a personal injury he received as the result of the wreck of his automobile which he was driving on Highway 24 in that county; which wreck, he alleged, was caused by the negligent failure of the Dunn Company, which he claimed had the highway under construction, to erect the necessary danger signs. There was a verdict and judgment for $1,500, from which judgment the Dunn Company appeals.
The wreck and injury occurred on the 25th of October, at 4:30 in the morning, therefore when it was dark. Nail, with three other men, were on their way from McComb to Hattiesburg. The highway runs east and west into, but not across, old highway Foxworth and Bogalusa, which runs north and south. The connection, therefore, makes a T. The entrance from Highway 24, going east to the old highway, is by means of two short curves, one to the right and one to the left. The wreck occurred at or near the entrance.
The defense of the Dunn Company was that (1) it had completed the construction of Highway 24, and therefore was under no obligation to erect and maintain danger signs. And, if mistaken, in that contention, (2) that it was guilty of no negligence proximately causing the wreck.
It is true that the Dunn Company had completed the work before the wreck and injury; but it is also true that the highway department had not formally accepted the job as completed until afterwards.
We pretermit deciding the first question, and go to the second. We have reached the conclusion, under the following process of reasoning, that the Dunn Company was not liable for the wreck and injury, even though the job had not been completed, and accepted by the Highway Commission. Nail and two of his companions in the automobile testified that there were no danger signs that night at any place along Highway 24, as it approaches the old Foxworth highway; that they were traveling from 40 to 45 miles an hour, and it was so dark that they could not see more than 40 feet ahead; that when the junction between the two highways appeared it was impossible to stop, resulting in the wreck.
Eight witnesses testified on behalf of the Dunn Company. Some of them stated that before the wreck, and late in the afternoon of the day before, the following danger signs were up along the highway; about 600 feet west of the junction of the two roads there was a "slow" signal, about 300 feet west a "danger" signal; and at the east end, about 10 feet beyond the junction, there was a barricade and a red intermittent electric light sign. Some of them testified that on the morning after the wreck and injury all these warnings were up except the barricade and electric sign, which appeared to have been recently knocked down. The only evidence to the contrary was that of Nail, who testified that two or three days before the injury he passed over the road, and none of the warnings were there.
The care due the traveling public by the Dunn Company is well stated in Myers v. Sanders, 189 Miss. 198, at pages 204 and 205, 194 So. 300, at page 302, in this language: "The construction not having been completed by the contractor or accepted by the proper public authorities as a completed highway under the terms of the contract, it was only required that the same be kept and maintained in a reasonably safe condition for the use of those traveling thereon and exercising a vigilant caution to keep a constant lookout for obstructions incident to the progress and completion of the work remaining to be done."
Surely, the Dunn Company did not owe the traveling public any greater duty than the master owes his servant. The master is due to furnish his servant a reasonably safe place to work, and reasonably safe instrumentalities with which to do the work. And if the master fails in either respect, still he is not liable unless he was affected either with actual or constructive notice of the defect causing the injury. Eagle Cotton Oil Co. v. Sollie, 185 Miss. 475, 187 So. 506, and cases cited in the opinion. The Dunn Company was not an insurer of the safety of the traveling public — its obligation was to exercise reasonable care and diligence. There was no evidence whatever that the Dunn Company knew the warning signs were down, if they were, or was affected with constructive notice that they were down. The overwhelming evidence was that they were all up the next morning, except the barricade and the electric sign, which appeared to have been recently knocked down. Taking Nail's testimony as true, that no warnings were there two or three days before, still that would not be sufficient to affect the Dunn Company with constructive notice. It was not required to keep a watch over the highway night and day, to see that the warnings were up. There was no evidence tending to show that the conditions existing on this highway were such as to require the Dunn Company, in order to guard the safety of the traveling public, to inspect it every day, or every two or three days, to ascertain if the danger signs were up.
It follows from these views that the Dunn Company was entitled to a directed verdict, because it had not failed in its duty to the public.
Reversed and judgment for appellant.