Holmes v. T.M. Strider Co.

Full title: HOLMES v. T.M. STRIDER CO. et al

Court: Supreme Court of Mississippi, Division B

Date published: Jun 5, 1939

186 Miss. 380 (Miss. 1939)

189 So. 518

Opinion

No. 33736.

June 5, 1939.

1. APPEAL AND ERROR.

On appeal presenting for decision question whether trial court erred in granting peremptory instruction, reviewing court was required to consider everything to have been proven which evidence established directly or by reasonable inference against the parties in whose favor the instruction was granted.

2. BRIDGES.

The project engineer of state highway department in charge of bridge repair work, the highway department, and contractor had no right to authorize replacing of guardrail in negligent manner so as to impair safety of traveling public having occasion to use bridge when it was reopened for public travel.

3. BRIDGES.

Where contractor had been instructed to replace hand-rail, wheel-guard and posts on bridge on which contractor had made repairs, it would be presumed that hand-rail, wheel-guard and posts were to be replaced in condition in which contractor had originally found them or at least in manner to insure reasonably safe use of bridge by traveling public in absence of proof of instructions given to the contrary.

4. BRIDGES.

The state highway department was without authority to release contractor which had made repairs on bridge from liability to general public that may have been occasioned by negligent manner in which guard-rails were replaced on bridge.

5. BRIDGES.

The liability of contractor for negligence in replacing guard-rails on bridge on which contractor had made repairs would not be affected by fact that contractor had no duty to maintain work which had been performed and could be released by highway department from such obligation if it existed.

6. BRIDGES.

Where contractor for repair work on bridge undertook to replace guard-rail pursuant to instructions from highway department, standards of safety and good workmanship essential to safety of traveling public were required to be complied with, whether work was performed under original contract or done under force account on cost plus basis.

7. BRIDGES.

The fact that project engineer of state highway department supervising work may have been negligent in not requiring contractor to replace guard-rail on bridge in safe condition would not relieve contractor of its negligence in that behalf.

8. AUTOMOBILES.

In action against contractor for injuries received by automobile guest when automobile plunged through guard-rail of bridge which was alleged to have been negligently replaced by contractor, liability did not depend on provision of contract requiring contractor to take necessary steps to safeguard work, operations and public, since liability, if established, rested on broader principle of duty imposed on contractor by general law.

9. BRIDGES.

Contractor for repair of bridge had duty not to obstruct or make highway over bridge dangerous for travel and to leave it in that condition when bridge was open for public use.

10. BRIDGES.

The duty of a contractor for repair of bridge to leave highway over bridge in safe condition may be enforced by anyone if damages occur on account of failure of contractor to perform that duty.

11. NEGLIGENCE.

Where an act of negligence is a substantial factor in bringing about an injury, it does not cease to be a legal and "proximate cause" thereof because of the intervention of a subsequent act of negligence of another which contributed to the injury, if the prior act of negligence is still operating and the injury inflicted is not different in kind than that which would have resulted from the prior act.

12. AUTOMOBILES.

A contractor was not relieved from liability for negligence in replacing guard-rail on bridge through which automobile plunged injuring a guest therein by fact that prior to the accident, the maintenance department of the highway commission placed gravel between wheel-guards which made it easier for automobiles to pass over wheel-guard and against guard-rail, where without negligent manner in which guard-rail was replaced by contractor, action of maintenance crew would not have been sufficient to have caused accident.

13. NEGLIGENCE.

After contractor has turned the work over and it has been accepted by public board or commission as satisfactory, the contractor incurs no further liability to third parties by reason of condition of work, and responsibility, if any, for maintaining or using it in its defective condition is shifted to public board or commission.

14. NEGLIGENCE.

Where work performed by a contractor is a nuisance per se or where it is turned over by contractor in manner so negligently defective as to be imminently dangerous to third persons, the contractor remains liable to third person by reason of condition of work even if work has been turned over to and accepted by public board or commission.

15. AUTOMOBILES.

In action against contractor for injuries received by automobile guest when automobile plunged through guard-rail which was alleged to have been negligently replaced by contractor after making repairs on bridge, whether work was turned over to highway commission by contractor in a manner so negligently defective as to be imminently dangerous to third person and render contractor liable was for jury.

16. AUTOMOBILES.

In action against contractor and steel company for injuries received by automobile guest when automobile plunged through guard-rail which was alleged to have been negligently replaced by contractor after having been removed preparatory to placing of extra steel span in bridge, question of liability of steel company was insufficient for jury.

APPEAL from the circuit court of Claiborne county; HON. R.B. ANDERSON, Judge.

J.D. Thames and Vollor Teller, all of Vicksburg, for appellant.

Creator of dangerous condition must bear consequences of his negligence.

Where one creates a situation which is inherently dangerous for persons who thereafter use it in the way it is intended to be used, or in the way that the creator of the danger knows it is to be used, the person from whose affirmative act the danger arises is responsible to one receiving injuries through such use.

Clemens v. Benzinger, 221 App. Div. 586, 207 N.Y. Supp. 539; Evansville Terre Haute R. Co. v. Crist, 2 L.R.A. 450; Heaven v. Pender, L.R. 11, Q.B. Div. 503; A. V. Ry. v. Graham, 157 So. 241, 171 Miss. 695; City of Jackson v. Richards, 186 So. 658; Public Service Corp. v. Watts, 150 So. 192, 168 Miss. 235; Price v. Parks, 173 So. 903, 127 Fla. 744.

As we have shown, these contractors' presence on this bridge, their work thereat and compensation received therefrom was all traceable to, and is governed by, a contract voluntarily entered into. No reason existed to prompt these contractors to bid on this project or to assume the obligations imposed thereby except their own business desires to personally profit therefrom, but they, of their own free will, with the contract (and by the term "contract" we include, as the contract did, the specifications, proposals, bond, plans and special provisions) before them, elected to bid on work to be done and extra work to be performed strictly in accordance with the terms of these instruments. The public, through its State Highway Commission, agreed to pay unto these contractors the price stipulated in the contract. These contractors knew the obligations set forth in the contract and their corresponding duties and liabilities to the commission and to the public generally.

Wunderlich v. State Highway Commission, 184 So. 456.

An independent contractor engaged in the construction, maintenance, or repair of a municipal bridge is liable for injuries sustained by a third person as a result of conditions brought about by such contractor.

11 C.J.S., page 1100, sec. 61; Wade v. Gray, 61 So. 168, 104 Miss. 151, 43 L.R.A. (N.S.) 1046.

These contractors knew that they were responsible "for accidents" on a temporary structure or any part thereof, that is, when the accident resulted from their negligence.

These contractors voluntarily assumed the duties and received the compensation provided for by the contract. This appellant is a cripple for life because they did not perform these duties. Certainly, as held in Wade v. Gray, 104 Miss. 151, "the contractor is liable in tort to any injured by his neglect."

Day v. Royce Kershaw, Inc., 187 So. 221; Y. M.V.R. Co. v. Sideboard, 133 So. 669, 161 Miss. 4; A. V. Ry. Co. v. Graham, 157 So. 241, 171 Miss. 695.

In the Graham case, the Highway Department was actually maintaining the bridge on U.S. 80, but that did not relieve the railway company from its duty to maintain; and certainly here, when, not passively but actively, these contractors affirmatively and consequently knowingly subjected the public to loss of life and limb (after they had agreed to be responsible in damages) they cannot be heard to hide behind the skirts of the department.

Neither Highway Department nor its agents can validly accept defective work.

Even had the Highway Department sought to accept this work, which the parties to the contract knew to be unworthy of acceptance, its act in so doing would have been ineffectual and void.

The supplemental agreement was not a release.

Simply because the Highway Department told these contractors that it would eliminate the danger was no release until the danger thus created was actually eradicated. The agreement was ineffectual to operate as a release from damages until the work had been done, the danger rectified, and the public, consequently, saved from harm.

The fact that the Highway Department failed, or delayed, to do that which it had agreed to do furnished no release no more than it eliminated the consequences of the original, continuing wrong — or else there would not have been two fatal, horrible accidents, with consequent death to and destruction of human beings. The Highway Department merely joined or concurred in the negligence of the original wrongdoer, and, until the department actually eliminated the danger, the liability existed and continued against the creator of the dangerous condition.

Hartley v. Rochdale, 2 K.B. (Eng.) 594, 3 B.R.C. 993, 77 L.J.K.B. (N.S.) 884, 72 J.P. 343, 99 L.T. (N.S.) 275, 24 Times L.R. 625, 6 L.G.R. 858.

It is settled in this case that tort-feasors may be sued jointly and severally, and that one joint tort-feasor is not released from liability by suit or judgment against the other, but that it requires a satisfaction or payment to satisfy the liability against joint tort-feasors.

Sawmill Construction Co. v. Bright, 77 So. 316, 116 Miss. 491; Nelson v. I.C.R.R. Co., 53 So. 619, 98 Miss. 295, 31 L.R.A. (N.S.) 689; Moore v. Foster, 180 So. 73; Miller v. Phipps, 137 So. 479, 161 Miss. 564; City of Lumberton v. Shrader, 168 So. 77, 176 Miss. 272; Atkinson v. Town of Decatur, 95 So. 689, 151 Miss. 707; Town of Senatobia v. Dean, 127 So. 773, 157 Miss. 207.

The fact that someone else may have also been guilty of negligence, may have participated in the wrong, and may therefore be also liable, is no excuse and furnishes no immunity to the original wrongdoer.

Oliver Construction Co. v. Dancy, 102 So. 568, 137 Miss. 474; Robbins v. The City of Chicago, 4 Wallace (71 U.S.) 657, 18 L.Ed. 427; 29 C.J. 677, sec. 442.

Directions of ministerial officers of State Highway Department are subject to terms of contract.

State Highway Dept. v. Duckworth, 172 So. 148, 178 Miss. 35; Morgan-Hill Paving Co. v. Fonville, 140 So. 575; Blendinger v. Souders, 2 Monaghan (Pa.) 48; Osborne v. Morgan, 130 Mass. 102, 39 Am. Rep. 437; Wade v. Gray, 61 So. 168, 104 Miss. 151; 69 A.L.R. 489; Kane v. Indianapolis, 82 Fed. 770.

The negligence of contractors was a proximate cause of injury.

Conner v. State, 177 So. 46, 179 Miss. 795; Superior Oil Co. v. Richmond, 159 So. 850, 172 Miss. 407; Ross v. Louisville N.R. Co., 172 So. 752, 178 Miss. 69; Soloman v. Continental Baking Co., 160 So. 732, 172 Miss. 388.

Dangerous condition, created by appellees, constituted nuisance per se.

Weber v. Buffalo R. Co., 20 App. Div. 292, 47 N.Y. Supp. 7.

Admission into evidence of acceptances on Projects 168-A and 168-B was error.

What has heretofore been said in this brief applies in all of its force to the appellee, The Vincennes Steel Corporation, who, for and in conjunction with T.M. Strider Co., actually created the dangerous situation which caused the injury herein complained of and which formed the basis of this suit.

Chaney Culkin, of Vicksburg, for appellee, T.M. Strider Company.

The appellees were fully and finally discharged from any further liability by the Highway Commission several months prior to the time of the accident.

The work on the bridge in question, even before the final discharge of the appellees, was, by the supplemental agreement, eliminated from the original contract. The supplemental agreement constituted a full release of the appellees for the work to be performed on the bridge.

The general rule is that where the contractor is released and steps out of control of the premises, he incurs no further liability to third persons. The Highway Commission retained the right to alter the original contract and to make supplemental agreements, in the discretion of the director. In the exercise of this discretion, the contract was altered and the supplemental agreement was entered into. The appellees were not consulted as to the advisability of making the change. They were simply notified that the change would be made, and they had no choice in the matter. It follows, therefore, in addition to the general release, the appellees were fully released from liability in connection with the work to be done on the bridge.

Mayor, etc., City of Vicksburg v. Holmes, 106 Miss. 234, 63 So. 454, 51 L.R.A. (N.S.) 469; Herring v. Planters' Lbr. Co., 153 So. 164, 169 Miss. 327.

Subject to some qualifications, among them the cases where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons, the general rule is that, after the contractor has turned the work over and it has been accepted by the proprietor, the contractor incurs no further liability to third persons, by reason of the condition of the work; but the responsibility, if any, for maintaining or using it in its defective condition, is shifted to the proprietor.

1 Thompson on Negligence, sec. 686; Vicksburg v. Holmes, 106 Miss. 234, 63 So. 454, 51 L.R.A. (N.S.) 469; Thornton v. Dow, 32 L.R.A. (N.S.) 986; Calan Construction Co. v. Clem, 41 A.L.R. 8, sec. 26; Memphis Asphalt Paving Co. v. Fleming, Ann. Cas., 1912B, 709; Young v. Smith Kelly Co., 4 Ann. Cas. 226; 45 C.J. 884; Wharton on Negligence, sec. 439; Cunningham v. Gillespie, 241 Mass. 280, 135 N.E. 105; First Presbyterian Congregation v. Smith, 163 Pa. 561, 30 A. 279, 26 L.R.A. 504; Williams v. Edward Gillen Dock, Dredge Construction Co., 169 C.C.A. 531, 258 Fed. 591; Salliotte v. Kind Bridge Co., 65 L.R.A. 620, 58 C.C.A. 466, 122 Fed. 378, 191 U.S. 569, 48 L.Ed. 306, 24 Sup. Ct. Rep. 841; Casey v. Wrought Iron Bridge Co., 114 Mo. App. 47, 89 S.W. 330; Fidelity Title Trust Co. v. Dubois Elec. Co., 253 U.S. 212, 64 L.Ed. 865; Fowles v. Briggs, 116 Mich. 425, 74 N.W. 1046, 72 Am. St. Rep. 537, 40 L.R.A. 528; M.K. T. Ry. Co. v. Merrill, 65 Kan. 436, 70 P. 358, 93 Am. St. Rep. 287, 69 L.R.A. 711; Haynes v. Norfolk Bridge Construction Co., 253 N.W. 344.

The bridge, after it was repaired and reopened in April, did not remain continuously in the same condition until the accident in December. In August, it was given a general overhauling. The wheel guards were taken up and replaced. The guardrails were taken down and replaced. The flooring was taken up and replaced, and in some instances other material was substituted. Gravel four or five inches thick was placed on the floor of the bridge. This was all done by the Highway Department, admittedly, after the appellees left the premises. There had been no gravel placed on the floor before the last repair job. The car, the plaintiff contended, skidded in the gravel from the center to the left hand side of the bridge, and ran over the wheel guard, that only lacked one or two inches of being covered with gravel. Without the presence of the gravel, of course, it would have been more difficult to drive over the guardrail. The court would take judicial notice of this fact, but a number of witnesses, including Mr. Howard, a witness for the plaintiff so testified.

However, regardless of whether the bridge was in better or worse condition after the last repair job, the fact remains that the work of the appellee did not cause the accident.

Public Service Corp. v. Watts, 150 So. 192; Thompson v. Miss. Central R. Co., 166 So. 352; Oliver Bus Lines v. Skaggs, 164 So. 9; Orton v. Pennsylvania R. Co., 7 F.2d 36; Ruffin Coal Transfer Co. v. Rich, 108 So. 596; 22 R.C.L. 139.

Brunini, Wright Brunini, of Vicksburg, for appellee, Vincennes Steel Corporation.

It is not true that Vincennes in conjunction with T.M. Strider Company actually created the dangerous condition which caused the injury, the basis of the suit. Neither did Strider Company cause the injury received by appellant.

This Honorable Court will observe that the structural steel was sold by Vincennes to Strider, and in consideration thereof Vincennes offered to furnish the necessary equipment, including steel sheet piling, for a lump sum rental of $3600 and to loan Strider from its organization competent men to handle foundation, concrete work and timber approaches as well as to handle the erection of the structural steel, and that Strider was to pay those men their customary wages and was to return to Vincennes its equipment in as good condition as when delivered to the project, with the exception of ordinary wear and tear. It furthermore agreed to furnish any general supervision that would be beneficial and not require any additional expense to Vincennes, and then it made known what that supervision meant. We quote: "This supervision meant that our general superintendent would probably have work of this company to look after in the vicinity of this project and would be able to check the work on this project and offer suggestions from time to time that might be beneficial without any expense to Strider."

This letter offered and introduced by appellant must be taken as the facts as to who was doing the work on the Bayou Pierre bridge. It conclusively shows that it was Strider and not Vincennes and the rumor or impression of street talk must have gotten abroad by fact that Vincennes did furnish the steel structure and did loan its equipment, probably taking the latter on the completion of the work of the bridge over Big Black, and from the further fact that Stogdell worked on the Big Black bridge.

We earnestly submit that the trial judge committed no error in directing the jury to find for Vincennes on the completion of the testimony in the case, and that as to the defendant Vincennes this case should be affirmed.

We concur in everything said in the brief of Messrs. Chaney Culkin with reference to the defendant T.M. Strider Company, and adopt said brief as an additional reason why the judgment should be affirmed in favor of the defendant Vincennes.

Argued orally by Landman Teller and J.D. Thames, Jr., for appellant, and by John Brunini and A.A. Chaney, for appellee.

McGehee, J., delivered the opinion of the court.

The question presented for decision on this appeal is whether the court below was in error in granting a peremptory instruction in favor of the appellees. It is necessary to such decision, that we consider everything to have been proven which the evidence establishes, directly or by reasonable inference, against the parties in whose favor the instruction was granted. New Orleans N.E.R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; New Orleans N.E.R. Co. v. Martin, 140 Miss. 410, 105 So. 864; Yates v. Houston Murray, 141 Miss. 881, 106 So. 110; Lowe v. Mobile O.R. Co., 149 Miss. 889, 116 So. 601; Lee County Gin Co. v. Middlebrooks, 161 Miss. 422, 137 So. 108; Keith v. Yazoo M.V.R. Co., 168 Miss. 519, 151 So. 916; Gravette v. Golden Saw Mill Trust, 170 Miss. 15, 154 So. 274; Masonite Corporation v. Dennis, 175 Miss. 855, 168 So. 613; and the case of Stricklin v. Harvey, 181 Miss. 606, 179 So. 345.

The appellee, T.M. Strider Company, are road contractors. They contracted with the Highway Commission to do certain work on U.S. Highway 61, in Claiborne County, north of Port Gibson. The contract contemplated, among other things, the placing of an extra steel span 100 feet in length in a bridge across Little Bayou Pierre, immediately north of the corporate limits of Port Gibson. The appellee, in pursuance of the contract, closed the highway across the bridge and did some preliminary work on the bridge, preparatory to placing the span, when they were notified by the Highway Department to stop work on the bridge. The notice given by the Highway Department was a letter, which is here copied:

"Port Gibson, Miss. "April 17, 1937. "Miss. PWS Docked 1043-R "P.W.S. 176 B "Claiborne County.

"T.M. Strider Co. "Port Gibson, Miss.

"Gentlemen:

"This is your authority to stop work on the bridge on the above numbered project. You are to replace hand rail, wheel guard, and posts and open bridge to traffic until notified to resume work.

"It is understood that the cost of replacing the above items will be paid by the State Highway Dept.,

"Very truly yours,

"F.B. Davison, "Project Engineer".

It was shown that the contract of the appellee, T.M. Strider Company, was for the construction of Mississippi P.W.S. Projects 168-A, 168-B and 176-B, Docket 1043-R; and that Project 176-B was for rebuilding and putting the extra steel span aforesaid in this bridge across Little Bayou Pierre, located about two blocks north of where the plaintiff and others got into the automobile, in which she was a guest, and which automobile plunged from the bridge upon striking the hand or guardrail, to a depth of about thirty feet, causing her to sustain the permanent injuries complained of and to become crippled for life, as well as causing the death of some of the other occupants of the car and severe injuries to some.

The appellant introduced as a witness, A.E. Alford, a patrolman of the State Highway Department, who testified that he and two other employees of the Department assisted a crew of men who were working for appellee, T.M. Strider Company, to replace the hand or guardrail, wheel guard, posts, etc., and to reopen the bridge for public travel on the said 17th day of April, 1937, the date on which the notice to such contractor was received from the project engineer of the Department in that behalf, as contained in the letter hereinbefore quoted. This witness further testified that when the appellee contractor started to work on this bridge, prior to the notice given by the Highway Department aforesaid, the wheel guards on the bridge were bolted down and the posts were bolted to the caps and stringers, and that they were secure; that the hand or guardrails were 2x8 inches in dimension, and that the posts on which they were fastened were stationed seven or eight feet apart; that the contractor on beginning the work took down the wheel guards, hand or guardrails, and also removed 100 feet of the flooring; and that upon receipt by the contractor of the notice to stop work as aforesaid, the posts were put back, as many of them with bolts as would catch to the old sills; and the others were nailed; that these posts for the hand or guardrails were placed 19 1/2 feet apart; and to which posts the hand or guardrails were again fastened. Of course, the flooring was also replaced on that day before the bridge was reopened for public travel. He also testified that the bridge remained in that condition until the next work was done thereon, about the 25th and 26th days of May, by the contractor on a force account (that is to say, at the cost of labor and materials, plus 10%, as this Project 176-B had in the meantime been eliminated from the original contract). No change was made, however, in the hand or guardrail after it was replaced by the contractor until after the accident complained of occurred on December 13, 1937.

In August, 1937, a maintenance crew of the Highway Department again changed the flooring, took up the wheel guards and replaced them, covered the floor with three or four inches of gravel, so that it extended to within about two inches of the top of the wheel guard, but did not then alter the condition of the hand or guardrail except possibly to strengthen it to some extent. This witness had occasion to go down and see the bridge after the accident occurred, and found one of the posts and two hand or guardrails torn off, and saw that there had been no change in the condition of the hand or guardrail at all from the time that they were replaced by the contractor, with his assistance, and the time of the accident, as heretofore stated.

Although this witness testified that in replacing the hand or guardrails, wheel guards, etc., he was working under a Mr. Stogdell, and understood that he was then working for the appellee, Vincennes Steel Corporation, it was shown by the evidence as a whole that he was then a servant of the appellee, T.M. Strider Company. He further said that the work was being done under the supervision of the project engineer, F.B. Davidson, of the State Highway Department. But, be that as it may, neither an engineer, the Highway Department nor the contractor, T.M. Strider Company, had the right to authorize the replacing of this hand or guardrail in a negligent manner so as to impair the safety and lives of the traveling public having occasion to use the bridge when it was reopened for public travel. Moreover, it does not appear that either the Highway Department or the project engineer instructed that the hand or guardrail be replaced in the manner testified to. The letter of April 17, 1937, addressed by the project engineer to the contractor, T.M. Strider Company, directed that the handrail, wheel guard and posts be replaced, and that the bridge be opened to traffic. In the absence of proof of any instruction given to the contrary, it should be presumed that they were to be replaced in the condition in which the contractor had originally found them, or at least in a manner to insure a reasonably safe use of the bridge by the traveling public. It was not seriously contended that the hand or guardrail was replaced in a substantial and safe manner, but the appellee contractor relied upon a supplemental agreement with the Highway Department, bearing date of June 18, 1937, and pleads an alleged release from the Highway Department from all further liability under the contract. However, the Highway Department was without authority to release the contractor from liability to the general public that may have been occasioned by the alleged negligent manner in which these hand or guardrails were replaced. Neither did it undertake to do so in the supplemental agreement or final release introduced in evidence.

Assuming that there was no duty on the part of the contractor to maintain the work which it had performed, and that it could be released by the Highway Department from such an obligation if it existed, these facts would not relieve the contractor of liability for negligence, which may have been still in progress and not have lost its identity and continuity when the injury occurred. Public Service Corporation et al. v. Watts, 168 Miss. 235, 150 So. 192.

In the case of Alabama V.R. Co. et al. v. Graham et al., 171 Miss. 695, 157 So. 241, 245, although unlike the case at bar in some respects, there was a continuing duty on the part of the railroad company to maintain the safety of the hand or guardrails on the overhead bridge against which Mrs. Graham negligently ran her car, and the Court held that the evidence supported the finding of the jury that the railroad company failed to use reasonable care to maintain the hand or guardrail in a condition to be reasonably safe for persons using ordinary care and prudence; and in that case the hand or guardrail was shown to be much more substantial than the one in the case at bar. And, the Court quoted with approval from the case of Crist v. Minnesota, etc. R. Co., 162 Minn. 1, 202 N.W. 57, 59, the following: "The highway officials, whether town or state, did not have the power by contract or otherwise to make the defendant immune from claims for damages resulting to claimants from a negligent failure to do that which the law commanded." Whether the work was performed under the original contract in the case at bar or was done under a force account as testified to, the appellee contractor undertook the duty of replacing the hand or guardrail, and in so doing, the law would require that the standards of safety and good workmanship should be complied with when known to be essential to the safety of the traveling public. Moreover, the fact that the Project Engineer of the Highway Department, supervising the work, may have also been negligent in not requiring the contractor to replace the hand or guardrail in a safe condition would not relieve the contractor of its own negligence in that behalf. It was held in Morgan-Hill Paving Company v. Fonville, 224 Ala. 383, 140 So. 575, 578, that: "If defendant was guilty of negligence which proximately caused plaintiff's hurt, as alleged in count 4 of the complaint, it cannot shield itself from liability by instructions from the state highway department. The law imposed on defendant the duty of exercising reasonable care, and will hold it liable for its failure to do so, regardless of such instructions."

It would not be necessary to the establishment of liability in this case that the provision of the contract contained in the printed specifications be given application to the effect that: "The Director reserves the right to open or close any section of the project to public travel at any time; this shall not be construed as acceptance by the Director of such sections. The Contractor shall take such steps as are necessary to safeguard his work and operations, and the public," for the reason that the alleged cause of action sued on does not necessarily grow out of a breach of any contract. It is one for damages growing out of the contractor's alleged tort in rendering the highway dangerous through negligence. It arises out of a legal duty devolved upon the contractor not to obstruct or make the highway dangerous for travel and leave it in that condition when the highway is being opened for public use. This duty being one to the public generally, it may be enforced by anyone if damages occur on account of a failure to perform that duty. The liability here, if established, does not depend upon the contract in question, but upon the broader principle of the duty imposed upon the contractor by general law. Wade v. Gray, 104 Miss. 151, 61 So. 168, 43 L.R.A. (N.S.) 1046.

It is next insisted that in view of the fact that the Maintenance Department of the Highway Commission made certain changes in the bridge in August, 1937, prior to the accident, in placing gravel between the wheel guards and making it easier for an automobile to pass over the wheel guard and against the hand or guardrail that this would serve as an efficient intervening cause so as to relieve the contractor of liability for the manner in which the hand or guardrail had been replaced. Responding to this contention, we refer to the case of Solomon et al. v. Continental Baking Company, 172 Miss. 388, 160 So. 732, 733, where the rule is stated that: "where an act of negligence is a substantial factor in bringing about an injury, it does not cease to be a legal and proximate cause thereof because of the intervention of a subsequent act of negligence of another which contributed to the injury, if the prior act of negligence is still operating, and the injury inflicted is not different in kind from that which would have resulted from the prior act." It was also said in the case of Superior Oil Company et al. v. Richmond et al., 172 Miss. 407, 159 So. 850, 852, that: "An intervening force which combines with the negligence of another in producing injury to a third person does not necessarily supersede the original act of negligence and become the sole proximate cause of harm produced thereby. Op. cit., 2 Restatement, Torts, sec. 441; Cumberland Tel. Co. v. Woodham, 99 Miss. 318, 54 So. 890." Without the original act complained of and alleged negligent manner in which the hand or guardrail was replaced on April 17, 1937, what was done by the maintenance crew in August of said year would not have been sufficient, under the proof now disclosed by this record, to have caused the automobile to have plunged off of the bridge in question. Conner v. State, 179 Miss. 795, 177 So. 46.

It was held in the case of Kane v. Indianapolis et al., C.C., 82 F. 770, 773, where Clark, a contractor, was declared liable along with the municipality, that while the responsibility of the city to protect third parties from injuries on account of the dangerous and defective condition of its streets and sidewalks was primary, that the complaint showed that the responsibility of the defendant Clark was also primary, "because he constructed the defective and dangerous step which caused the injury."

Many cases are cited by the appellee in support of the rule, which is in accord with practically all of the authorities, to the effect that, after the contractor has turned the work over and it has been accepted by a public board or commission as satisfactory, the contractor incurs no further liability to third parties, by reason of the condition of the work, and that the responsibility, if any, for maintaining or using it in its defective condition, is shifted to the public board or commission. This rule, however, is subject to some qualifications, among them the cases where the work is a nuisance per se, or where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons. The rule thus contended for by the appellee was approved and applied by this Court in the cases of Herring v. Planters' Lumber Co., 169 Miss. 327, 153 So. 164; and Vicksburg v. Holmes, 106 Miss. 234, 63 So. 454, 51 L.R.A. (N.S.) 469. We are of the opinion that it was a question for the jury as to whether the facts in the record now before us were such as to bring the case within the exception above mentioned and emphasized. While the case of Alabama V.R. Co. v. Graham et al., supra, involved a different situation, as to the extent and nature of the duty and obligation of the railroad company, than the status occupied by the contractor in the present suit, we are of the opinion that the principles of law therein announced are applicable on the question of whether the contractor was negligent in failing to discharge the duty which it owed to the appellant and the public generally.

It follows that the cause must be reversed and remanded for a new trial as to the appellee, T.M. Strider Company. But, in so far as the other appellee, Vincennes Steel Corporation, is concerned, we do not think that the evidence as a whole, when fully understood, is sufficient to establish any responsibility for the negligence complained of, and the peremptory instruction in its favor was proper.

Reversed in part, affirmed in part, and remanded.