WETMORE & CO. v. Reed

• Decision Date: 09 August 1938
• Docket Number: No. 8722.,8722.
• Citation: 98 F.2d 532
• Parties: W. G. WETMORE & CO., Inc., et al. v. REED et al.
• Court: U.S. Court of Appeals — Fifth Circuit

98 F.2d 532 (1938)

W. G. WETMORE & CO., Inc., et al. v. REED et al.^*

No. 8722.

Circuit Court of Appeals, Fifth Circuit.

August 9, 1938.

C. L. Tubb of Aberdeen, Miss., and Thos. J. Tubb, of West Point, Miss., for appellants.

James A. Cunningham, of Booneville, Miss., and John H. Holloman, of Columbus, Miss., for appellees.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

FOSTER, Circuit Judge.

This is a suit by appellees, Mrs. Pearl Reed, widow of Glenn V. Reed, on behalf of herself and two minor children, to recover damages for the death of the husband and father, alleged to have been caused by the negligence of appellants, W. G. Wetmore, Inc. and F. S. Neely, in not maintaining proper signs, danger flags, barricades and warning lights on a bridge and road they were constructing. Defendants pleaded the general issue. There was joint and several judgment against both defendants. The assignments of error all run to the refusal of the district court to direct a verdict in favor of defendants. The case presents mainly a question of fact. The following material facts appear from the record.

In 1936 a new highway was under construction running from the end of Main Street, Columbus, Mississippi, to a point on the Luxapalila River, where it would connect with U. S. Highway 82 on the far side of the river. The road was being built by the Mississippi Highway Commission, under the authority given it by Chapter 122, Mississippi Code of 1930, as amended by the laws of 1936. Neely had the contract to do the grading of the road up to a bridge over the river, a distance of about 3.6 miles. Wetmore had the contract to build the bridge. Neely completed his work on October 24th and a final estimate was given him by the Highway District Engineer. Neely had erected a barricade across the road about 1800 feet from the bridge. About September 28th he was requested by the district engineer to remove the barricade, to permit Wetmore to use the road for the purpose of hauling material for the construction of the bridge, and did so. Wetmore erected another barricade about 50 feet from the edge of an excavation he had to make in the road, as graded by Neely, for the purpose of putting down the bridge approaches. This barricade was composed of gum logs and saplings and was erected about the first of September. The road was not officially open to the public but automobiles other than those used by Wetmore constantly travelled over it without objection from defendants or the representatives...