Davis v. Department of Highways

• Decision Date: 03 November 1953
• Docket Number: No. 8019,8019
• Citation: 68 So.2d 263
• Parties: DAVIS v. DEPARTMENT OF HIGHWAYS.
• Court: Court of Appeal of Louisiana — District of US

Page 263

68 So.2d 263

DAVIS v. DEPARTMENT OF HIGHWAYS.

No. 8019.

Court of Appeal of Louisiana, Second Circuit.

Nov. 3, 1953.

Rehearing Denied Dec. 2, 1953.

Writ of Certiorari Denied Jan. 11, 1954.

Lemuel C. Parker, W. Crosby Pegues, D. Ross Banister and Joseph A. Loret, Baton Rouge, for appellant.

Hussey & Smith and Charles O. Hardey, Shreveport, for appellee.

GLADNEY, Judge.

The Department of Highways of the State of Louisiana appeals from a judgment awarding James Hollis Davis $25,488.95 for personal injuries. In answer to the appeal appellee, Davis, asks that the award be increased.

On the evening of October 7, 1951, at or about 7:00 p. m. Davis was driving alone in a 1950 Ford pick-up truck borrowed from his employer, Allied Well Service. He entered State Route 202 from the Trees City Road and drove eastward at a speed of 30 to 35 miles per hour along said route a distance of approximately half a mile when the truck struck a ridge of windrowed dirt and gravel in the center of the highway and overturned on its left side. His left arm was pinned underneath the vehicle and so badly injured that amputation was required.

For a cause of action appellee alleged his injuries were caused by the negligence of appellant's employees in failing to barricade or place flares or any other type of warnings to notify him of the existence of such a dangerous condition. He asserted he was free from negligence as he was unable to see the ridge of dirt within sufficient time to avert striking it. Appellant's defense is predicated, first, on the sufficiency of the notices and warnings that were given to motorists using the highway while it was undergoing construction, and, second, on the contributory negligence of appellee in failing to keep a proper lookout and by placing his arm in a perilous position, which position, it is alleged was directedly responsible for the injury.

State Route 202 leaves the Shreveport-Vivian Highway and runs west to the Texas line, a distance of about five miles. This highway had been under construction since July 20, 1951. At each end of the project the usual highway signs measuring 6 feet by 4 feet were in place and displayed the following wording: 'Road Under Construction for the next five miles. Work done by the Department of Highways, O-4.' The eastern four miles of the highway had been completed, but traffic was freely permitted on the western end thereof although it was still under construction. On the evening of the accident appellant's employees finished windrowing dirt and gravel. This constituted a ridge which stretched along the center of the highway for about a mile. The ridge was from 2 to 3 feet in height and was about 8 feet wide. A lane for traffic was left on either side. It is admitted by appellant that other than warning signs at each end of the project above described, there were no signs, flares or other indications to motorists of unsafe conditions.

Davis testified as he neared the scene of the accident he was traveling upgrade and making a left-hand curve and as he approached the top of the grade the headlights of the truck were thrown to the right of the road and upward so that until he reached the top of the grade the lights did not reflect the ridge of dirt and gravel, then only some 20 feet distant, at which time it was too late to avoid striking same.

The judge a quo accompanied his judgment with written reasons which indicate careful and serious attention was given to all issues in the case. Guided by rulings in Rosier v. State, La.App.1951, 50 So.2d 31 and Goodwin v. Department of Highways, La.App.1951, 53 So.2d 161, he found appellant grossly negligent in leaving the ridge of dirt in the road without warning signals properly placed, and he absolved appellee of being guilty of contributory negligence.

The highway authorities in the exercise of reasonable care toward motorists are required to post notices and signs warning them of dangerous conditions. The rule is so stated in Corpus Juris Secundum:

'While the exercise of reasonable care by highway authorities toward motorists may require a placing of signs warning of dangerous conditions, as where there are obstructions or excavations in the way, or the highway terminates abruptly, or a bridge has been destroyed, warning signs need not be maintained at places which do not present an extraordinary condition or unusual hazard, as, for example, at curves of an ordinary character in the highway. Warnings or notices need not be given where the physical facts give sufficient warning of the danger. Where a barrier gives ample and timely warning of the dangerous condition of the road, there is no duty devolving on those in charge of the highway to post notices of the condition of the road some distance therefrom. In determining what is reasonable warning, the place at which the danger exists, the nature of the road, and the general situation and circumstances surrounding it are to be taken into consideration, as are also the kind of travel and the speed at which vehicles will probably travel on the road.' 60 C.J.S. Motor Vehicles, § 192, pages 530, 531.

To the same effect see Rosier v. State, La.App.1951, 50 So.2d 31.

The warning by means only of a sign at each side of the project on State Route 202 informing motorists the road was under construction, in our opinion, failed reasonably to indicate the dangerous condition which caused the accident. It is, of course, recognized that ordinary care does not include guarding against rare and unforeseen accidents, but the tragedy which befell appellee was not of such a nature. The ridge of dirt left in the center of the highway, by reason of the curve and upgrade of the surface of the road, was not exposed by the lights of the truck until too late for appellee to change his direction. The curve and the upgrade were visible physical signs pointing to the likelihood that the obstruction would be concealed from the lights of vehicles traveling eastward until the crest of the hill would be reached. As the west end of the ridge was but twenty feet from the crest of the hill the dangerous condition should have been anticipated and proper signals placed at that point for motorists traveling after dark.

In Rosier v. State, supra, plaintiff's husband and their minor children were drowned when their automobile was swept into Castor Creek by swift running flood waters at the end of the bridge. The Department of Highways urged that the employees were not negligent because of the presence of several signs bearing the legend 'Road Closed' and 'Road Under Water' placed along the route the automobile traveled in reaching the place of the accident, but it was discovered that the sign placed near the bridge was face down on the shoulder adjacent to the ditch. Consequently, the court found the driver of the automobile did not have an opportunity to see the sign and awarded damages, holding the warnings must be of a size and nature commensurate with the danger ahead.

In DeHart v. State, La.App.1950, 46 So.2d 366, plaintiff was permitted to recover for the death of her husband when a truck in which he was riding struck a ridge in the highway due to the installation of a culvert. The court held the Department of Highways employees guilty of negligence in so installing the culvert without giving any warning signals or signs of any kind to motorists, especially to motorists traveling on a dark night. The mound, it said, was not of such a size as to be...