Archer v. Rogers Const., Inc.

• Decision Date: 20 November 1968
• Citation: 252 Or. 165,447 P.2d 380
• Parties: Florence E. ARCHER, Administratrix of the Estate of Kyle Archer, Deceased, Appellant, v. ROGERS CONSTRUCTION, INC., a corporation, Respondent.
• Court: Oregon Supreme Court

Page 380

447 P.2d 380

252 Or. 165

Florence E. ARCHER, Administratrix of the Estate of Kyle Archer, Deceased, Appellant, v. ROGERS CONSTRUCTION, INC., a corporation, Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted Oct. 9, 1968.

Decided Nov. 20, 1968.

Bernard P. Kelly, Medford, argued cause for appellant. On the briefs were Kelly, Grant & Cooney, Medford.

Richard Bryson, Eugene, argued cause for respondent. On the brief were Calkins & Bryson, Eugene.

Before PERRY, C.J., and SLOAN, O'CONNELL, DENECKE, and MENGLER, JJ.

MENGLER, Justice Pro Tem.

This is an appeal from a judgment entered on a directed verdict for the defendant in a wrongful death action. Plaintiff's decedent was killed when the car he was driving apparently failed to negotiate a sharp turn onto a detour and toppled over the side of a temporary bridge over Salt Creek on Highway 58. The detour and the temporary bridge were constructed early in January 1965 after the permanent bridge was washed out in the December 1964 flood. On March 3, 1965, the defendant entered into a contract with the State Highway Commission to clean up debris on the highway right-of-way; to reconstruct and construct 17.89 miles of intermittent sections, and to remove the temporary bridge over Salt Creek when it was no longer needed. A new permanent bridge was to be built by another contractor.

This detour and temporary bridge linked the two sections of the highway which the defendant was to resurface, and they continued to exist during the performance of the contract and were used by the defendant, the traveling public, and by Ross Brothers, the other contractor who was building the new permanent bridge.

On the date of the accident, the work required under the contract was virtually completed except for the removal of the temporary bridge, but the defendant did have men working on the 18-mile stretch of road but not in the immediate vicinity of the detour and temporary bridge.

The pertinent provisions of the contract are as follows:

'4--8 Provisions for Traffic

'Subject to the provisions of Article 8--6, the work to be done by the contractor shall include the work of making adequate and thoroughly satisfactory provision for the traffic carried by such private and public roads, highways and streets as are traversed, crossed or interfered with in any way by the new construction. This work shall include the furnishing of whatever labor, materials, tools and equipment may be necessary to provide and maintain suitable roadways over which to handle the traffic, and the furnishing of such labor, materials, tools and equipment, including flagmen, lights, barricades, warning signs, et cetera, as may be necessary to satisfactorily control, guide, protect and safeguard traffic.

'* * *.'

'4--9 Maintenance of Detours Over Public Roads

'The detouring of traffic over existing public roads will be permitted, if the engineer determines that the public roads to be used are suitable and satisfactory in all respects and do not too greatly increase the distance to be traveled. The decision of the engineer as to whether or not traffic may be detoured over a given section of existing public road shall, however, govern.

'The maintaining of detours over existing public roads shall be by the contractor and he shall bear the expense thereof, except in cases (a) where the detour traverses, for a distance of more than one-quarter mile, a section of existing public road that is not in any manner affected by the work being done or to be done under the contract, and (b) during suspension of work due to conditions not the fault of the contractor. In the cases to which these exceptions apply, the State, or the county in which the work is located, will maintain the section of existing public road that the detour traverses.'

'7--25 Responsibility for Damages

'The contractor shall be responsible for all damages to property, injury to persons, and loss, expense, inconvenience, and delay that may be caused by or that may result from any act, omission, or neglect of the contractor, his subcontractors, or his employes in the performance of the work to be done under the contract.

'* * *.'

The complaint was in two counts. The first count alleged that defendant was negligent in two particulars:

'a. Failure to have placed adequate warning of a temporary bridge on said highway at said time and place and of the dangerous condition of said highway and bridge at said time and place.

'b. Failure to have placed a guardrail on said temporary bridge.'

The plaintiff's first assignment of error is that the court erred in sustaining the motion of defendant for a directed verdict.

In an appeal from a judgment entered on a directed verdict we are required to determine whether there was a complete absence of proof of defendant's negligence or that there was no conflict in the testimony and it was susceptible of only one construction. We must view the evidence most favorably to the plaintiff and give him every favorable inference that may be drawn from the evidence. Young v. Crown Zellerbach, 244 Or. 251, 417 P.2d 394 (1966).

The evidence is that the temporary bridge over Salt Creek, and the detour leading up to it, were built and in use prior to the execution of the contract between defendant and the state; that the existing warning signs had not been placed by the defendant; that the defendant did not participate in designing the temporary bridge or the detour leading to it; and that he did not participate in any way in their initial construction. There is an admission by the defendant that he improved the approach to the bridge by hard-surfacing, widening, and lessening the curve. There is no evidence that this work done on the detour by the defendant in any way made it more dangerous or created any hazard.

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