Opinion
No. 34076.
March 4, 1940. Suggestion of Error Overruled September 4, 1940.
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 obstructions incident to progress and completion of work remaining to be done.
2. AUTOMOBILES.
Where truck driver passed detour signs and warnings and traveled on highway under construction and when truck driver's vision was obscured by dust caused by another vehicle, right rear wheel of truck passed over sand piled on edge of graveled portion of highway for use in building headwalls of culvert, and caused guest to fall from truck, failure of truck driver to anticipate that his vision might be obscured and his failure to have truck under control was sole proximate cause of accident and precluded recovery from highway contractor for guest's death.
3. AUTOMOBILES.
Where truck driver passed detour signs and warnings and traveled on highway under construction and when truck driver's vision was obscured by dust caused by another vehicle, right rear wheel of truck passed over sand piled on edge of graveled portion of highway for use in building headwalls of culvert and caused guest to fall from truck, highway contractor's placing of sand on edge of graveled portion of highway was not negligent but was a reasonable exercise of his right to carry on work to completion.
4. HIGHWAYS.
Contractor constructing highway is not required to keep lights during daytime on all piles of road materials needed on highway during construction, and is not required to construct effective barricades around such materials.
APPEAL from the circuit court of Clarke county; HON. A.G. BUSBY, J.
Gilbert Cameron, of Meridian, for appellant.
The truck left Highway No. 11, passed the warning sign onto the new construction and proceeded south over the roadbed at about 30 miles an hour, that was being packed, and hardened and smoothed and prepared for the laying of concrete; soon after passing the bridge it seems that they met another car which caused considerable dust and that this dust prevented the driver of the truck from seeing the pile of sand in the road which the witnesses fixed at four to twelve feet in width on the roadway; the driver was within a short distance of the sand when he first saw it and swerved a short distance to the left, and the front wheels missed the sand but the right rear wheels of the dual wheels ran across the edge of the sand, causing a jolt, which some of the occupants did not notice, and the deceased, riding in the position in which he was riding was thrown from the truck and killed.
It is undisputed that the sand was placed in the road by an employee of Ralph Myers in the prosecution of the work he had contracted to do.
We are not here concerned with the duty of contractors as to warnings, signs, or barricades on main highways under construction indicating to travelers the unusable portion of the road under construction and closed.
Central Paving Const. Co. v. McCaskin, 183 Miss. 814.
For here the truck turned off the highway at a point that was not closed at all onto a closed road under construction and before ever reaching the detour.
We submit that there is less liability on the contractor, Ralph Myers, than in the McCaskin case, since the truck voluntarily turned off of a perfectly safe highway on to the new one and when he did he took it as he found it as he assumed all the risks, as shown by the plaintiff's own evidence.
McDonald v. Gas Oil Co., 180 Miss. 350.
We need not determine the relationship between the contractor and the occupants of the truck as the deceased was obviously not an invitee, he was either a licensee or a trespasser, and the only duty was not to wilfully injure him. Clearly, the boy, Hobbs, when he placed the sand in the road did not intend to injure any one, but was merely doing his duty as an employee and it was a necessary part of the road building and had to be done in order to build the concrete headings to the culvert.
Merely because some people, ignoring the signs and warnings, went over the road under construction does not render the contractor liable, as a repetition of unlawful acts creates no rights.
Steinback v. City, 79 Miss. 447, 452.
The appellant had a contract for the construction of this road and having complied with the law he was guilty of no negligence and the peremptory instruction should have been given for the appellant.
Reily Parker, of Meridian for appellees.
The contention of the plaintiff as to the duty owed by the defendant to the deceased when using this road is stated in the declaration as follows: "That by reason of the said road being a public highway it became and was the duty of all persons to use due care to prevent dangerous and unnecessary obstructions to be placed in the said highway and ordinary care and ordinary safety required that no obstructions be negligently placed in the said highway so as to render traffic along the said highway dangerous and unsafe, and so to do would be negligence rendering such parties liable to any person injured or killed as a proximate result thereof."
Graves v. Johnson, 179 Miss. 465, 176 So. 256; Graves v. Hamilton, 184 So. 56.
The two cases above cited state the law accurately when applied to a road under construction of that nature which would permit unrestricted use up to a point where the road would be entirely closed with a barricade that would be dangerous to collide with; and it is here stated in substance that the contractor owes two duties as to methods of safety — to give adequate warning that the road is under construction; and to use such a barricade as could be readily or easily seen by those exercising vigilant caution and keeping a constant lookout. Where the character of danger is different the substance of the above rules would be applied, as we contend, to the effect that adequate warnings should be given that the highway was under construction, and that the highway should be so maintained that it could be used with safety by those exercising vigilant caution and keeping a constant lookout.
Graves v. Johnson, 179 Miss. 465, 176 So. 256.
The duty imposed on the contractor to use reasonable care is concerning a safety that is considered in connection with the expected conduct of a user of the highway.
The defendant was in error in insisting that the contractor owed the deceased no duty other than not to wilfully injure him, and the trial court was not in error in refusing to apply this theory insisted upon by the defendant.
There was a judgment rendered in the court below in favor of the appellees, who are the wife and children, respectively, of James Leonard Sanders, deceased, for damages sustained by them on account of his death, which resulted when he fell from a truck while riding thereon as a guest of his kinsman, Willie Sanders, on U.S. Highway No. 11, south of Meridian, at a point where the highway was under construction pursuant to a contract between the appellant Ralph Myers, doing business as Ralph Myers Construction Company, and the state highway department. The accident occurred when the rear dual wheels on the right side of the truck ran across the edge of a pile of sand which had been unloaded in a portion of the graveled part of the highway for use in building some head walls to a culvert there underneath the road-bed.
On the afternoon of the accident, the said James Leonard Sanders and several other occupants of the truck were returning from Meridian, where he had purchased a radio, and which he was holding in his lap at the time of the accident while seated on the floor of the truck near the left edge thereof. There were no side planks to the truck body, nor other means available to this occupant by which he could steady himself as he rode along in that position over the new construction where obstructions and rough places were likely to be encountered.
The load of sand had been hauled that afternoon, and was unloaded so as to extend out some distance on the graveled portion of the highway, but so as to leave sufficient clearance for cars and trucks to pass. The contract required that the way be left open while the construction was in progress in such manner as to permit local traffic thereon. This requirement precluded the contractor from placing and maintaining such barricades as would have been effective to prevent general traffic. Privileges granted unto some members of the public, for particular and sufficient reason, as being the only means of ingress to and egress from their homes, will be taken by others for one reason or another, and often for no reason at all. In this instance, the preponderance of the evidence seems to support the contention that the new road at the place of the accident was being generally used by a greater proportion of the traveling public, notwithstanding the fact that large detour and warning signs, painted in conspicuous colors and properly stationed, were maintained by the contractor so as to invite the general public to use for through traffic a detour graveled road — old Highway No. 11 as far as Basic City in a southeasterly direction — which was then being maintained by the state highway department, and had been so maintained and properly marked with "Highway No. 11" signs for several months prior to the accident in question. At Basic City this old Highway No. 11 was closed so as to prevent traffic following it back to the new construction north of West Enterprise and so as to divert the traffic from Basic City over the extension of the detour to East Enterprise.
In traveling south from Meridian on U.S. Highway No. 11, the pavement came to an end at or near the Clarke County line where there was a large striped sign painted in conspicuous colors as aforesaid, at the side of the road, about six by eight feet in dimension, on which there appeared in large letters the words "Caution" and "Road Under Construction," and there also appeared thereon a detour arrow and a hanging lantern. It was some four or five hundred yards south from this sign to where the detour road hereinabove mentioned — old Highway No. 11 — turned off in a southeasterly direction from the southern course of the new highway then under construction. At this point of divergence there was another sign of the same size and design, and on which there appeared in large letters the words "Detour" and "Construction, Road Under". This sign was near the center of the road, around the end of which the cars would pass and travel onto and over the new construction. The truck passed both of these detour signs, leaving old Highway No. 11 at the second sign and traveling a short distance down the new road to where it ran across the edge of the pile of sand as hereinbefore stated. The failure of the driver to see the sand in time to avoid the accident was, as he and other occupants of the truck testified, due to the fact that he had just passed another car or truck which raised such a dust as to obscure his vision.
All the occupants of the truck on which James Leonard Sanders was riding at the time of the accident knew that the road was under construction from the end of the pavement on south to and beyond West Enterprise. In fact, while en route north to Meridian that afternoon they had left the detour road at East Enterprise, which was being maintained via Basic City as aforesaid by the highway department, and had traveled another road until it intersected the road under construction, and thence over the new road north until they reached the pavement, passing the detour signs and warnings at the north end of the construction hereinbefore mentioned. This, however, was prior to the placing the pile of sand in the edge of the road by a truck driver of the appellant.
It appears that this portion of the highway was being made ready for the pouring of concrete thereon, and that under appellant's contract there remained to be done the work of sodding the shoulders and embankments, building the head walls for the culverts and keeping the graveled surface machined with blades and smoothed. As to whether it was absolutely essential, as a necessary incident to the completion of the culverts, that a load of sand be placed in the edge of the road for use in making the head walls thereof, as was done in the instant case, the record is virtually silent, except that it appears from a photograph introduced in evidence that it would likely have been very inconvenient, if not impracticable, to have unloaded the sand on the slanting surface of the road-bed near the end of the culvert or to have mingled it with the growth of vegetation usually found on the right of way outside the road-bed at that season of the year. 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. Graves et al. v. Johnson et al., 179 Miss. 465, 176 So. 256. Also in the companion case of Graves et al. v. Hamilton, 184 Miss. 239, 184 So. 56, 57, the principle is recognized that a completed highway should be kept and maintained in a reasonably safe condition for those exercising ordinary care in traveling thereon, but when there are sufficient facts and circumstances to put a motorist on notice that a highway is under construction, the duty of the contractor in regard thereto only requires that it be kept and maintained in a reasonably safe condition for use "by those exercising vigilant caution and keeping a constant lookout." It cannot be questioned that this pile of sand could have been readily and easily seen by a motorist in the daytime if he were exercising a vigilant caution and keeping a constant lookout for obstacles, the presence of which he should have anticipated on a road under construction, except for the fact that in this instance his vision was obscured by the dust raised by another car or truck and for which the contractor was not responsible.
We are of the opinion that the failure of the driver of the truck, from which Mr. Sanders fell, to anticipate that his vision might be obscured by the dust from a passing car or truck, and his failure to have his own truck under such control as a vigilant caution and constant lookout would have occasioned, and so as to be able to stop his truck in such an emergency instead of proceeding on through the dust, was the sole proximate cause of the accident and injury complained of; and that therefore there could be no recovery against the appellant contractor under such circumstances. The proof discloses that the contractor had done everything that he could to keep the through traffic off the portion of the highway then under construction that would have been consistent with his obligation to permit local traffic thereon; and in our opinion the placing of the load of sand in the edge of the gravel portion of the highway for use in building the head walls of the culvert underneath the same at that place was not a negligent but a reasonable exercise of his right to carry on the work to completion, since he left a sufficient clearance for the local traffic and for others to pass in safety when exercising the vigilant caution and constant lookout required of them in traveling over a highway known to be under construction.
A contractor would not be required to keep lights during the daytime on all piles of road material needed on the highway during the construction, nor should he be required to construct effective barricades around such materials, where in all probability the barricade would have likewise been obscured by the denseness of the dust through which the occupants of this truck say they were passing in approaching the scene of the accident; and which attempted safe-guards may have only tended to increase the danger, rather than provide a protection. They were not justified under the law in proceeding through the dust at unslackened speed under the assumption that a road under construction was free of obstructions.
From the foregoing views it necessarily follows that the peremptory instruction requested by the appellant should have been granted.
Reversed and judgment here for the appellant.