Blain v. Sullivan, 44623

• Decision Date: 04 December 1967
• Docket Number: No. 44623,44623
• Citation: 204 So.2d 436
• Parties: W. E. BLAIN et al., d/b/a W. E. Blain & Son, Contractors et al. v. B. F. SULLIVAN, Administrator of the Estate of Douglas McArthur Harvey, Deceased.
• Court: Mississippi Supreme Court

Page 436

204 So.2d 436

W. E. BLAIN et al., d/b/a W. E. Blain & Son, Contractors et

al. v. B. F. SULLIVAN, Administrator of the Estate of Douglas

McArthur Harvey, Deceased.

No. 44623.

Supreme Court of Mississippi.

Dec. 4, 1967.

Megehee & Brown, Pascagoula, White & White, Gulfport, Cox, Dunn & Clark, Jackson, for appellants.

George Grubbs, Mendenhall, Cumbest, Cumbest, O'Barr & Shaddock, Pascagoula, for appellee.

ETHRIDGE, Chief Justice:

This is an appeal from a jury verdict and judgment of the Circuit Court of Jackson County, rendered in favor of plaintiff-appellee, B. F. Sullivan, administrator of the estate of Douglas McArthur Harvey, deceased, in the amount of $45,000 as damages for Harvey's death. He was killed when at night he drove his car past warning signs into an asphalt spreader parked on the shoulder of a road under construction, and not open for general and unrestricted public use. The defendants-appellants are the prime contractor for the construction of the road, W. E. Blain & Son (called Blain) and Blain's superintendent, James Kelley; and the subcontractor for the asphalt paving, Sam Finley, Inc., (called Finley), and its foreman Charles Ray. We reverse and render judgment here for appellants. There was no actionable negligence by them. Moreover, Blain could not be liable in any event, since the asphalt spreader was owned and exclusively under the control of Finley, an independent contractor.

Blain, as prime contractor, made a contract with the Mississippi State Highway Department to construct a five-mile, two-lane highway north of and parallel to existing U.S. Highway 90 in Jackson County. Blain began work on this road construction project at the east end and worked west, preparing the subgrade to receive the asphalt paving. He sublet the asphalt paving portion of the job to Finley. The construction work had been in progress for several months. Harvey had been employed by Blain for three months before the accident on July 27, 1965. He did general work, driving trucks, flagging traffic, and placing flares. Harvey resided about two city blocks from the site of the construction and the accident.

At each end of the project and at various intervals along it, barricades were erected according to highway department standards, on which there were lights or smudge pots. There were cross-over locations on which persons driving on the street to the north could cross over to the existing Highway 90. 'Road Closed' signs and wooden barriers were set up at cross-over locations, with lights, but despite these signs vehicles at times would use the project, which had not been opened to the public, by ignoring the warning signs and driving around the sides of the wooden barricades. Harvey was fully acquainted with the project site, and the fact that the road was under construction.

The asphalt spreader involved in the accident was owned, controlled and under the exclusive supervision of Finley. It was painted a bright yellow, and was eight feet wide and seven feet high. It weighed over 14,000 pounds. It was parked by Finley's Foreman, Ray, on the Friday evening before the accident on the following Tuesday night, and was not moved from that spot. The asphalt spreader was located inside the barricades and lights, and on the north shoulder of the road under construction, with its right wheels off on the dirt portion of the shoulder. In this area the paving work had been substantially completed. All that remained to be done was to place the final layer of asphalt, eight feet in width, on the north shoulder. At the point of collision, the pavement was thirty-five feet in width, with a three-foot paved shoulder on the south or left-hand side, a twenty-four-foot main section, which was to become the traveled portion, and an eight-foot paved shoulder on the north or right-hand side, on which the spreader was parked. In addition, there was a section of dirt shoulder on the extreme north of the project, with a width of about three feet. The spreader, parked with its right wheels off the pavement and on the dirt portion of the north shoulder, was situated one to two feet away from and off the unmarked main section of the roadway, which was to become the main traveled portion. Moreover, there was a thirty-foot width of pavement to the left of the parked machine which was clear and unobstructed. The road was level and there were no obstructions on either side of the spreader. It could be seen as far as the eye would reach. There were no lights or flares placed on or near the spreader, which was owned and controlled by the subcontractor. Finley did not place lights upon his parked equipment when it was not in the main portion of the road. The spreader was put in gear when parked, and a one-ton screed attached to its rear was lowered and rested upon the pavement.

On that Tuesday morning, Harvey reported to work, but since it was raining, he was excused for the day. Leaving the project, Harvey and some friends stopped within five feet of the asphalt spreader when they thought they had a flat tire. That night Harvey borrowed a car...