Carter v. Franklin

• Citation: 173 So. 861,234 Ala. 116
• Decision Date: 15 April 1937
• Docket Number: 4 Div. 877
• Parties: CARTER v. FRANKLIN.
• Court: Supreme Court of Alabama

173 So. 861

234 Ala. 116

CARTER v. FRANKLIN.

4 Div. 877

Supreme Court of Alabama

April 15, 1937

Appeal from Circuit Court, Covington County; Robt. S. Reid, Judge.

Action by Mae Franklin, as administratrix of the estate of Horace Franklin, deceased, against Ivey Carter and others. From a judgment granting plaintiff's motion for a new trial, the named defendant appeals.

Reversed and rendered.

Powell Albrighton & Albrighton, of Andalusia, for appellant.

B.W Smith, of Samson, and E.O. Baldwin, of Andalusia, for appellee.

BOULDIN Justice.

Action for damages under the homicide statute, Code, § 5696.

The defendants were Martin Wunderlich Construction Company Martin Wunderlich, individually; and Ivey Carter. There was verdict for plaintiff against the first-named defendants, and verdict for defendant Ivey Carter.

On motion by the unsuccessful defendants for a new trial, based on numerous grounds, plaintiff confessed error, and a new trial was granted.

Plaintiff moved for a new trial as against the successful defendant, Ivey Carter, upon the ground that the verdict was not supported by the evidence, was opposed to the great weight of the evidence, and a general averment that the verdict was contrary to law. This motion was granted. The appeal is to review this ruling.

Plaintiff's intestate came to his death from driving a motortruck into a barricade erected on the State Highway leading from Opp to Andalusia, Ala. This highway was, at the time, in the course of reconstruction under a contract with the State Highway Department. The reconditioning of the roadbed, and paving the road, called for such possessory control over same as to warrant the closing of the road to public travel pursuant to Code 1928, § 1397(34).

Pursuant to such authority, the contractor, Martin Wunderlich Construction Company, had closed or undertaken to close a section of the road leading from Opp to Bethel Church, some three or four miles in length. Detours had been provided.

Barricades and warning signs had been erected at the termini of this section and at the several intersections with other roads. Considerable evidence is devoted to the question whether all intersections were thus safeguarded. It further appears that in dry weather the road was reopened at intervals. Vehicular travel was made one of the means of packing the roadbed at certain stages of construction. But, without serious dispute in the evidence, the road was closed, with warning signs and barricades up on January 3d, the date of the fatal accident, and for several days prior thereto.

By the great weight of the evidence, we may say without substantial controversy, it appears plaintiff's intestate knew this fact at the time. Whether all the intersections were provided with adequate warnings or barricades as to those who might enter through them without other knowledge that the road was closed to travel becomes unimportant. That persons were finding their way around barricades and using this highway with knowledge that it was lawfully withdrawn from public use for purposes of construction, can afford no lawful warrant for such practice. The construction company owed no special duty to safeguard such persons from injuries due to conditions attending the construction work. Being in the wrongful use of such premises, injuries directly resulting from such use are chargeable to such negligent or wrongful act under the same principles of law, broadly speaking, which apply to trespassers on the premises of another. Butman v. Newton, 179 Mass. 1, 60 N.E. 401, 88 Am.St.Rep. 349; Hunter v. Montesano, 60 Wash. 489, 111 P. 571, Ann.Cas.1912B, 955; Jones v. Collins, 177 Mass. 444, 59 N.E. 64; Shawano County v. Froemming Bros., 186 Wis. 491, 202 N.W. 186.

The barricade in question was located on the closed section of the highway at a point between the initial barriers and warning signs in Opp and near Bethel Church.

It consisted of several strands of wire rope stretched across a bridge on the highway and made fast to the steel structure of the bridge on each side thereof. It appears two evergreen bushes had been cut and set in position intended as a warning to vehicles. Whether these were adequate to give proper warning in the daytime is not here important. This fatal collision was at night. There were no warning lights. Counts of the complaint are directed to the character of this barrier, and the want of lights or other warning signals, as a basis for the charge of negligence or wanton wrong, the proximate cause of the injury.

Admittedly this barrier was erected under direction of the superintendent in charge of such matters for the construction company. This appellant, Ivey Carter, was a day laborer under the orders of such superintendent, who directed the erection of this wire rope barrier at that point.

Appellant presents two lines of argument in support of the assignment of error, namely, the granting of a new trial as against him on motion of plaintiff:

First, it is insisted, the evidence plainly and palpably supported a verdict in his favor on grounds personal to him.

Second, that both employer and employee were entitled to an affirmative instruction, or the weight of evidence plainly and palpably called for a verdict for all.

Inasmuch as the cause stands for a new trial as to the employer, it is fitting that no discussion of the evidence be had except as may be necessary to determine the legal rights of this appellant.

In this connection we deem it proper to note that where employer and employee are sued in tort,...