Opinion
36275, 36323.
DECIDED SEPTEMBER 21, 1956.
Tort; homicide from open bridge. Before Judge Humphrey. Toombs Superior Court. May 12, 1956.
J. Ellis Pope, Alvin L. Layne, T. Ross Sharpe, for Holland.
B. J. Jackson, Jackson Graham, for Somers Construction Company.
Nat O. Carter, Wm. T. Darby, for Mrs. Phillips.
1. It is not necessary to sustain the cause of action that one suing for the value of the life of a guest passenger in an automobile whose death allegedly resulted from the negligence of third parties should allege facts negativing any relationship between the guest and the driver which would result in imputing the driver's negligence to such deceased guest.
2. The special demurrers set forth in this division of the opinion are without merit.
3. The contract between Holland Construction Co. and the State Highway Department in which the prime contractor undertook the duty of warning the public of danger incident to the construction work inured to the benefit of the public and of the plaintiff, and was properly pleaded. It did not purport to fix the standard of care to be exercised by the co-defendant subcontractor. Since it was relevant to the cause of action the special demurrers of the latter were properly overruled.
4. The allegations of the petition in this case show that the defendants were prime contractor and subcontractor respectively under a contract of the former with the State Highway Department to repair a certain stretch of highway and build a bridge, and that the latter was employed by the former, under its supervision and direction, to construct the bridge. The prime contractor undertook by contract to post warnings in advance of any place on the project where construction would interfere with travel and was liable for failure to exercise ordinary care to comply with this duty which was undertaken by it and which inured to the benefit of the traveling public. The subcontractor is also liable for failure to exercise ordinary care to warn persons lawfully using the road of hazards created by its own activities which render the incompleted bridge impassable. The allegations of the petition accordingly set out a cause of action as against both defendants.
DECIDED SEPTEMBER 21, 1956.
Mrs. G. D. Phillips filed an action for damages in the Superior Court of Toombs County against Somers Construction Co., Inc. and Holland Construction Co. for the death of her son. Demurrers of each of the defendants were overruled, and the bills of exceptions, here considered together, assign error on these rulings.
The petition as amended alleges in substance that the plaintiff's deceased son was a gratuitous guest passenger in an automobile owned by and solely in control of the operator, Hall; that the driver was proceeding along highway No. 147 in the exercise of ordinary care; that on this highway was a partially completed bridge with an intended span of 189 feet, of which only 81 feet on the side which the automobile approached was finished; that the plaintiff's son and the driver were unfamiliar with the road; that they were traveling, at about 10:30 p. m. at a speed of approximately 40 miles per hour; that they had traveled 3 or 4 miles along the highway and passed no signs, lights, barricades or other warnings that the bridge was under construction; that due to the night, the color of the road and the color of the surface of the completed portion of the bridge they were unable to detect that it was under construction and had an open gap therein until too late to stop the car, which fell into the creek bed killing the plaintiff's son. The defendant Holland Construction Company had contracted with the State Highway Department to pave a portion of highway and to erect a bridge in connection therewith over a creek, one paragraph of which provided as follows: "The contractor shall erect warning signs beyond the limits of the project, at least 500 feet beyond each end of the project and at least 500 feet in advance of any place on the project where operations interfere with the use of the road by traffic, including all intermediate points where the new work crosses or coincides with the existing road. Barricades shall be kept well painted and suitable warning signs shall be illuminated at night and all lights or devices for this purpose shall be kept burning from sunset to sunrise. Whenever traffic is maintained through or over any part of a project, the contractor shall clearly mark all traffic hazards." It is alleged that the defendant Holland "employed the defendant Somers to construct the aforesaid bridge under its directions and supervision, with the defendant Holland being responsible for said construction."
It is further alleged that although the highway over which the plaintiff's son was riding toward the bridge was under construction, the prime hard surfacing had been applied, the shoulders were completed, and the road was open to travel and being used by the general public; that the prime contractor was in control of the road and bridge and had actual knowledge that no adequate signs or lights had been posted to warn the traveling public of the hazard of the open bridge, but sat idly by and did nothing to prevent the continuance of this negligence. Negligence is charged against both defendants in failing to erect any signs, warning lights, barricades, or other notice of the open bridge.
1. It is not necessary for an injured guest plaintiff, or one suing for damages resulting from the death of such guest passenger, to allege freedom from negligence on the part of the guest or to negative any relationship between the guest and the driver which might result in imputing the driver's negligence to the guest, insofar as the averments of the petition are concerned. Mayor c. of Savannah v. Waters, 27 Ga. App. 813 (2) ( 109 S.E. 918). Since it is alleged that the deceased was a gratuitous guest passenger in an automobile which was under the exclusive control of the driver thereof and was the property of his wife, special demurrers seeking further information as to the status of the guest were properly overruled.
2. Reasonable definiteness and certainty in pleading is all that is required, and fictitious demands by special demurrer should not be encouraged. Delta Air Corp. v. Porter, 70 Ga. App. 152 ( 27 S.E.2d 758). Those special demurrers of the defendant Somers Construction Co., Inc., seeking additional information as to whether or not the approaches to the bridge were under construction and, if so, who was in charge of such construction, are not meritorious since the alleged negligence concerns failure to warn of a gap which was located, not on the approaches, but 81 feet beyond them. Likewise, the allegation that the road "was open to travel by the public and being used by the public" was not subject to demurrer because it is not alleged by whom it was open to the public and "not shown whether the road was being used by the public with the knowledge and consent of the defendants, both of them or either of them." The petition alleges that the road was a public road, that the public was using it, and that there was no warning posted to deter the public from making such use. It accordingly contains sufficient factual allegations to inform the defendants against what they are called upon to defend.
3. Numerous demurrers of Somers Construction Co. seek to have the allegations in relation to the contract between Holland Construction Company and the State Highway Department stricken from the petition. It is perfectly true, as contended in the demurrer, that as to Somers Construction Company its standard of care is not fixed or varied by the terms of the contract, it not being a party thereto. The negligence charged against Somers, and also against Holland for that matter, is common-law negligence, a failure to exercise ordinary care to prevent injury to travelers while engaged in the work of constructing the bridge. Since the provisions of the contract do not affect the rights or liabilities of the defendant Somers, and since the plaintiff has a right to plead the contract as against the codefendant, Holland Construction Company, the special demurrers of Somers seeking to have these allegations stricken were properly overruled.
4. It is the contention of Holland Construction Co. in support of its general demurrers that since the bridge construction was subcontracted to Somers and since the road, which was under the prime contractor's sole control, is not alleged to have been defective, that the only negligence alleged is against the subcontractor. On the other hand, Somers Construction Co. contends that it was a mere servant of Holland with no control over the bridge or approaches and that no duty rested upon it to erect barricades or other warnings, this contention being urged by both general demurrer and special demurrer to various allegations of negligence.
"A contractor constructing a bridge owes a duty to the public to exercise ordinary care to protect the public from injuries arising by reason of said construction." Trammell v. Matthews, 84 Ga. App. 332, 338 ( 66 S.E.2d 183); State Construction Co. v. Johnson, 82 Ga. App. 698, 700 ( 62 S.E.2d 413). Where the prime contractor in its contract with the State Highway Department undertakes to assume control of the area for the purpose of putting up barricades or other warnings, this obligation inures to the benefit of the public, and it is liable for the failure to exercise ordinary care to warn travelers of the dangers incident to the construction. State Construction Co. v. Johnson, 88 Ga. App. 651, 656 ( 77 S.E.2d 240). Where one company enters into a contract with the State Highway Department to do construction work on the public highways of this State and lets out a part of the contract to another company, the work to be under the direction and supervision of the former, the relation of contractor and subcontractor exists between the two and they may be jointly liable for injury resulting from negligence. Doby v. Florence Construction Co., 71 Ga. App. 888, 890 ( 32 S.E.2d 527). Accordingly, where, as here, the prime contractor who is charged with constructing a bridge and a portion of a highway employs another company to build the bridge, although it may in general direct and supervise the work in accordance with the terms of its contract, the relationship insofar as building the bridge is concerned is not solely that of master and servant, and the subcontractor who is actually engaged in erecting the bridge must be considered to be in control of the construction to the extent of exercising ordinary care to avoid injuring others thereby. Holland Construction Company had a general duty respecting the entire project to warn the traveling public of dangers incident thereto; Somers Construction Co. also had a duty to avoid injuring others in the construction work actually undertaken by it.
There is no merit in the contention that the contract provisions quoted in the petition were for the exclusive benefit of the Highway Department to protect it from liability. The paragraph with which we are concerned places on Holland the duty to erect warnings "500 feet in advance of any place on the project where operations interfere with the use of the road by traffic." Failure to give such warning is the only negligence alleged against the defendants. "Neither a county nor the State Highway Department when it has assumed jurisdiction over a State-aid road located in such county, is under a legal duty to post warning signs on the approaches to its bridges." Grady County v. Banker, 81 Ga. App. 701, 703 ( 59 S.E.2d 732). Nor is Evans v. Scott Co., 43 Ga. App. 332 ( 158 S.E. 584), cited by the defendant Somers, authority for holding that defendant exempt from liability. The Evans case fails to reveal the theory on which the judgment of the trial court sustaining numerous demurrers was affirmed. Many of the demurrers would have no relation to this case. If that case turned upon demurrers attacking the petition for failure to show under what authority the defendant there undertook to lay a sewer pipe across the highway and whether it had control of the highway for that purpose, then the facts of the cases distinguished them, as Somers Construction Company is here alleged to have been constructing the bridge under proper authority, and it cannot therefore be assumed that it lacked control of its own construction so as to prevent it from exercising ordinary care in regard to the work undertaken by it.
The trial court did not err in overruling the demurrers in both cases.
Judgments affirmed. Gardner, P. J., and Carlisle, J., concur.