Bryson v. Phelps

• Decision Date: 05 November 1929
• Docket Number: 3 Div. 629.
• Citation: 23 Ala.App. 346,125 So. 795
• Parties: BRYSON ET AL. v. PHELPS.
• Court: Alabama Court of Appeals

125 So. 795

23 Ala.App. 346

BRYSON ET AL. v. PHELPS.

3 Div. 629.

Court of Appeals of Alabama

November 5, 1929

Rehearing Denied Jan. 7, 1930.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action for damages by Robert C. Phelps against A. C. Bryson and the Walter J. Bryson Paving Company. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Ball &amp Ball, of Montgomery, for appellants.

Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appellee.

SAMFORD, J.

The complaint is in five counts-the first two claims for wantonness and the last three claims for a simple negligence in that defendant placed or caused to be placed in a public highway of the County of Montgomery, at a certain named place, nails, and as a proximate result therefrom plaintiff was injured, etc.

Briefly stated, the Walter J. Bryson Paving Company, acting through its vice president and alter ego, was engaged under contract with the Alabama state highway department in the construction of a pavement over and along a roadway then under construction, beginning at a point near the end of Bell street in the city of Montgomery and extending to a point some distance beyond the bridge over the Alabama river in the direction of Birmingham. The road had never been officially opened to the public by the highway department, and, while the Bryson Company had laid the pavement, the said pavement was yet "green," i. e., had not become hardened for a sufficient number of days to meet the requirements of the contract, so that it might be turned over by the Bryson Company and accepted by the highway department, from a point where the pavement joined the Selma road, to a point beyond Hunter Station on the South side of the Alabama river. So that this part of the pavement was still in the possession and under the control of the Bryson Company for construction purposes. During this time it was the duty of the Bryson Company to protect the pavement so that it could and would come to a point of hardness sufficient to meet the terms of the contract, and it was also a part of its duty to erect and maintain proper and approved barriers across the pavement so as to warn travelers that the road was closed and to prevent its use by vehicles of any kind. The Bryson Company did erect barriers at each end of this uncompleted pavement, to wit, at a point just beyond the Selma road on the end next to Montgomery and at Hunter's store on the other end. As to whether the barrier on the Montgomery end was properly maintained was a disputed fact and a question for the jury. The "shacks" and camp of defendants were located near the right of way of the roadway near Hunter's store in which camp lived the employees of defendant and where was kept its road equipment, implements, etc. In front of this camp, and on the pavement completely laid but unseasoned, was placed a large quantity of flatheaded nails about 1 1/4 inches in length. These nails were scattered along the roadway for quite some distance and covering the entire width of the roadway, so that an automobile could not pass over said pavement without having its tires punctured by said nails, thereby injuring the tires and rendering the occupants thereof liable to great physical danger. The nails were bought by and were the property of the defendant company.

The three major questions as presented by assignment and brief are: (a) The failure of plaintiff to prove that defendants were responsible for the placing of the nails. (b) Was the place at which the nails were a public highway? And (c) contributory negligence of plaintiff.

As to (a): There was testimony from which the court might have upon written request, instructed the jury that A. C. Bryson was the alter ego of defendant company. He was the agency through which it acted and any admission relative to the placing of the nails made while the pavement was still incomplete and in the possession and control of the company would be binding both on him and the Bryson Company. The rule as laid down in Bessemer Coal & Iron Co. v. Doak, 152 Ala. 166, 44 So. 627, 12 L. R. A. (N. S.) 389, and similar cases is the rule here. A. C. Bryson was in the discharge of his duties in and about the possession and preservation of the pavement, which was still in the possession and under the control of the Bryson Company. In addition to some circumstances tending to prove the...