Dowden v. State

• Decision Date: 18 May 1955
• Docket Number: No. 8319,8319
• Citation: 81 So.2d 48
• Parties: F. I. DOWDEN, Plaintiff-Appellee, v. STATE of Louisiana, Through the Department of Highways, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 48

81 So.2d 48

F. I. DOWDEN, Plaintiff-Appellee, v. STATE of Louisiana, Through the Department of Highways,

Defendant-Appellant.

No. 8319.

Court of Appeal of Louisiana,

Second Circuit.

May 18, 1955.

Rehearing Denied June 22, 1955.

W. Crosby Pegues, Jr., D. Ross Banister, Philip K. Jones, Baton Rouge, Francis X. Vinet, New Orleans, Louis S. Quinn, Joseph A. Loret, Baton Rouge, for appellant.

Pickett & Pickett, Many, for appellee.

AYRES, Judge.

This is one of seven separate actions in tort instituted by as many individuals against the State of Louisiana through the Department of Highways as the result of two separate accidents occurring on Highway No. 173, a state graveled highway, near the community known as Old Peason, Sabine Parish, Louisiana, at about 9:00 o'clock P.M. and 12:00 o'clock midnight, respectively, Saturday, December 23, 1944. Each of the seven plaintiffs alleged that the accidents were caused by the negligence of the Highway Department in failing to maintain proper precautions or warning signs, signals or devices at or near a point on the highway where the Department had torn out and removed a bridge so as to make the highway impassable at that point and to constitute an extremely dangerous condition, although the highway was left open so that motorists traveling thereon had no warning of the existence of such situation.

The defendant, after filing and urging, to no avail, pleas and exceptions to the jurisdiction of the court, both ratione personae and ratione materiae, immunity from suit, and of no cause or right of action, answered admitting and alleging '* * * that prior to the alleged time of the alleged accident mentioned in said original petition in order to repair a bridge on State Highway 173 in the Parish of Sabine, State of Louisiana, near the Peason old sawmill site, respondent, through its agents, servants and employees, tore out said bridge from over the waterway which it crossed and left said highway without any bridge across said waterway until after the time that said alleged accident is alleged in said original petition to have happened, thus leaving a gap in said highway from the time said bridge was removed until after the said alleged time of said alleged accident, which gap was impassable; and that there was no watchman provided by respondent in the neighborhood of said gap during the night on which said alleged accident is alleged to have happened, but there was a detour provided around said gap,' and contended that the site of the construction work was properly safeguarded, specifically by (1) a bridge out sign, (2) a barricade, (3) a dirt levee four feet high across the highway, (4) warning signals properly maintained, and (5) a detour road leading off the highway at a point 30 feet, more or less, from the torn out bridge.

For lack of information, the happening of the alleged accidents and that plaintiffs were injured thereby were denied by defendant as was the negligence of any of its employees proximately causing the accident, if, in fact, it should be determined that such occurred. Defendant charged the plaintiffs with negligence constituting the proximate cause of the accidents, or, in the alternative, with contributory negligence barring their recovery.

The plaintiffs were authorized by special acts of the Legislature, Acts 220, 221, 222 and 249 of 1948, to institute these actions against the State, which actions differ only as to the character, nature and extent of the injuries allegedly suffered by them.

From the judgments in favor of each of the plaintiffs, the defendant appealed to this court.

While the pleas and exceptions were neither argued nor briefed in this court and, consequently, may properly be considered as abandoned, nevertheless, we may state that we have recently had the occasion to consider similar pleas and exceptions and found them without merit. See Stepan v. Louisiana State Board of Education, La.App., 78 So.2d 18, and Marler v. State, La.App., 78 So.2d 26.

State Highway No. 173 was at the time of the accident a graveled highway connecting the communities of Kisatchie and Florien, about 20 miles apart. The Department of Highways was reconstructing all of the wooden bridges on that road and was at the time in the process of rebuilding the particular bridge where the accidents occurred. The bridge had been torn out, dirt from the abutments piled near the end of the bridge in the highway and a piece of timber of a size 3"" X 10"", the length of which was not shown, was laid only partially across the road opposite the bridge from the pile of dirt. A part of the framework of the new bridge had been constructed. A plank detour bridge had been constructed nearby across the creek, but the detour thereto was somewhat inconspicuous and unnoticeable, especially at night. The 3"" X 10"" timber contended by the defendant as constituting a barricade could hardly be considered as such. The alleged levee of dirt likewise across the highway is not shown to have been a levee or to have extended across the highway, but on the contrary appears to have consisted only of a low mound of dirt thrown out by the workmen in the course of their excavation or digging operations. This was not shown to have been intended as a precautionary measure. The evidence fails to establish there was either a detour sign or a bridge out sign, as contended by the defendant and disputed by the plaintiffs.

The testimony of defendant's witness, Ralph F. Burnett, bridge foreman on the work at the time of the accidents, is most unconvincing and fails to establish with any degree of certainty that any substantial precautions were taken to warn the traveling public that the bridge had been removed. This witness testified, not from any independent knowledge or recollection, but from custom and general practice in such matters. This character of testimony is entirely inadequate to overcome the positive and direct testimony of the several plaintiffs to the contrary, from whose testimony we are convinced there was neither a detour sign, a bridge out sign, flares or other warnings, nor a barricade in any form. The bridge was, therefore, left open without a watchman, lights, flares or other adequate warning signs or signals.

With the bridge in this condition, the bridge crew had departed for the Christmas holidays. As to the last day the crew worked, Burnett's testimony does not establish--he did not recall whether it was the day before the accident or not. He was apparently certain none of the crew were on the job the day of the accidents. Neither did he know the day he returned after the holidays. While he testified the flares were customarily left lighted with sufficient oil for 24 to 48 hours, it is not shown at what hour or day they were lighted or that the 48 hours limit had not previously expired before the first accident. This again is insufficient to overcome the positive testimony of the plaintiffs that no flares were burning.

The danger of this open bridge was further aggravated for motorists approaching from the south because of a hill over which motorists traveling from that direction had to pass immediately before descending to the creek. With the bridge out, there was in reality an open hole or section below the road level concealed by the general topography and contour of the area in such a manner that it was next to impossible for an unsuspecting motorist to become aware of it, regardless of his alertness, until he was too close and it was too late to avoid it.

As was stated in Reeves v. State of Louisiana, La.App., 80 So.2d 206:

'There is a mandatory statutory duty of the Department of Highways to erect and maintain proper and adequate signs, signals and warning devices necessary for informing, directing, cautioning and warning the traveling public of any unusual situation or dangerous condition on the highways or to its approaches which may impede or obstruct the safety of traffic.'

The aforesaid conditions constitute such obvious and serious obstructions and dangers as are contemplated by the statute referred to, LSA-R.S. 48:345, which, in part, reads as follows:

'The department shall erect and maintain all signs, signals, or devices necessary for informing, directing, cautioning, and warning the traveling public.'

Observations made in Reeves v. State of Louisiana, supra, are very appropriate here. There it was stated:

'The due care therefore owed by highway authorities to motorists requires the posting of notices and signs warning them of dangerous conditions. The general rule is stated in 60 C.J.S., Motor Vehicles, § 192, page 530:

"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.' [Emphasis supplied.]

'To the same effect are the decisions in Department of Highways v. Fogleman, 210 La. 375, 27 So.2d 155; Department of Highways v. Jones, La.App., 35 So.2d 828; De Hart v. State, La.App., 46 So.2d 366; Rosier v. State, La.App., 50 So.2d 31; Goodwin v....