Driver v. Worth Const. Co.

• Decision Date: 15 December 1954
• Docket Number: No. A-4530,A-4530
• Citation: 273 S.W.2d 603,154 Tex. 66
• Parties: Imogene DRIVER, Petitioner, v. WORTH CONSTRUCTION COMPANY, Respondent.
• Court: Texas Supreme Court

Page 603

273 S.W.2d 603

154 Tex. 66

Imogene DRIVER, Petitioner, v. WORTH CONSTRUCTION COMPANY, Respondent.

No. A-4530.

Supreme Court of Texas.

Dec. 15, 1954.

Rehearing Denied Jan. 12, 1955.

Calloway Huffaker and Harold Green, Tahoka, for petitioner.

M. Hendricks Brown and Chas. J. Murray, Fort Worth, for respondent.

GRIFFIN, Justice.

This is a suit for damages resulting from the death of Boyd Driver, husband of petitioner. Driver died as a result of injuries suffered by him when about 2 a. m., on the night of May 13, 1952, he drove his automobile down a portion of a new roadway then under construction by respondent, Worth Construction Co., hereinafter called contractor, in Tarrant County, Texas. Petitioner alleged that contractor had an open pit about sixteen inches deep where Ohio Garden Street crossed this new highway and that contractor had no barricade, flares, or warning signs to prevent travelers on this new roadway from driving into said pit. A trial was had to a jury. After the jury had returned its verdict, petitioner filed her motion to disregard findings of the jury and for judgment, and contractor filed a motion for judgment on the jury's verdict. The trial court heard argument on both motions and granted contractor's motion, but overruled petitioner's motion. On petitioner's appeal the Court of Civil Appeals affirmed the trial court's judgment. 264 S.W.2d 174. Both parties applied for a writ of error, and we granted both applications.

There is no contention on the part of either party that the roadway on which Driver received his injuries had been accepted by the State and was opened for traffic to the public. All the evidence shows that this particular roadway was still under construction at the time of Driver's injury.

Old State Highway 183, in the Ft. Worth vicinity, begins in the western part of town at Camp Bowie Boulevard and runs generally north and east, crossing the Jacksboro Highway (No. 199), thence easterly via the stockyards district and on to Dallas, Texas. On the night of May 13, 1952, Boyd Driver and Ira Siratt were employees of a Mr. Tucker who operated Tucker's Bar & Grill in downtown Ft. Worth. About 1 a. m., after Tucker had closed his cafe, Driver took Mr. and Mrs. Tucker to the home in west or northwest Ft. Worth. Siratt went along for the ride, and (after taking the Tuckers home) Driver was to return Siratt to his home in southeast Ft. Worth. Driver had taken the Tuckers home on at least two previous occasions at night and while the new part of Highway 183 was under construction and Siratt had accompanied him. The State Highway Department had let a contract to contractor to construct this new slab, and thus convert old Highway 183 into a highway of two strips of two one-way lances each, separated by an unpaved open space of approximately twenty-nine feet in width. The new strip was south of the old highway, and when accepted by the Highway Department and opened for traffic would carry eastbound traffic toward downtown Ft. Worth. The most direct and convenient way to get from Tucker's Bar & Grill to his home by car was to go out the Jacksboro Highway to its intersection with Highway 183, thence out 183 to Merritt Street, thence left or south to other streets which would take one to the Tucker home. This route was the one used by Driver, who was driving his own car, on the night of the accident, and had also been used on the previous occasions when Driver had taken the Tuckers home after closing the cafe. On this night, on the return trip from the Tucker home to Siratt's home, Driver drove across the new construction on Merritt and across the old highway, and about 100 yards north of the old highway. Evidently, sensing he was on the wrong road, he turned around and headed back south down Merritt Street, and crossed the old highway on which he had come from town, and on which he had returned to town on the previous trips. After crossing this paved road, and before he reached the new slab, Driver turned slightly to his left so as to enter upon the new slab and leave the flares and barrier to his right. The new slab protruded some six inches above the ground level at the place where Driver went upon it. Ohio Garden Street was some 800 feet easterly down the slab from the place Driver got upon it. Under the instruction of the municipal authorities, contractor had left a fire lane across the new right of way at Ohio Garden Street so that traffic might cross at this point. This area was unpaved, and the bottom of the fire lane was some twelve to sixteen inches below the top of the concrete slab of the new highway. Contractor had placed flares at each corner of the end of the slab at Ohio Garden Street intersection, thus making two flares on each side of the excavation, or a total of four flares. There was no barricade or barrier across either end of the concrete slab at Ohio Garden Street. The jury found the failure of the contractor to have such barricade was negligence and a proximate cause of the happening in question, but found that contractor did not fail 'to have sufficient warning flares on the new concrete roadway' at the Ohio Garden Street intersection. It was upon the jury's answers to the issue as to barricades that petitioner bases her claim for judgment in her favor.

Petitioner, by points of error Nos. 1, 2, 3, 4, 7, 9 and 10, in varying language, complains of the action of the trial court and the Court of Civil Appeals in denying her a recovery by virtue of a jury finding in answer to Special Issue No. 34 that he was guilty of negligence in not traveling on the old roadway instead of upon the roadway under construction, and that such negligence was a proximate cause of the injuries suffered by Driver and which caused his death.

We think the trial court was in error in basing his judgment against petitioner in part upon the jury's affirmative answers to Special Issues Nos. 34 and 35. No. 34 asked the jury by appropriate language if 'Boyd Driver was negligent in failing to travel on the old portion of Highway 183 on the occasion in question.' No. 35 inquired if such negligence was 'a proximate cause of the accident in question.' The old portion of Highway 183 was the road on which Driver had come from downtown Ft. Worth on the night in question, and the road used by the public in returning to downtown Ft. Worth, and which Driver had used on the prior occasions he had carried the Tuckers home. Such issue decided no ultimate fact issue in this case. The fact that Driver was not traveling on any other Ft. Worth street save and except the new roadway under construction could not be determinative of the negligence of either contractor or petitioner with regard to the happening at the intersection of Ohio Garden Street where petitioner was injured. The jury's answers to Nos. 34 and 35 should have been disregarded as wholly immaterial as to liability herein. Petitioner's points of error 1, 2, 3, 4, 7, 9 and 10 are sustained.

Since we do not agree with the Court of Civil Appeals in its affirmance of the trial court's judgment upon the ground that the jury's answer to Special Issue No. 34 convicted petitioner's deceased husband of contributory negligence and thus prevented her recovery, it is our duty to examine the other assignments of error in the Court of Civil Appeals to determine if there are assignments in that Court presenting other questions of law over which we have jurisdiction and upon which the judgment of the Court of Civil Appeals may be affirmed. Southern Pac. Co. v. Walters, 110 Tex. 496, 221 S.W. 264; Holland v. Nimitz, 111 Tex. 419, 431, 432, 232 S.W. 298, 239 S.W. 185; Hunt v. Wichita County Water Improvement Dist. No. 2, 147 Tex. 47, 211 S.W.2d 743.

'The rule has therefore been developed, and has become well established, that when it is determined that the Court of Civil Appeals erred in basing its judgment on a particular ground, the Supreme Court is authorized to consider the briefs filed in that court, not for the purpose of reversing its judgment, but for the purpose only of determining whether, by considering other assignments therein, it could affirm such judgment. Cox., Inc., v. Humble Oil & Refining Co., Tex.Com.App., 16 S.W.2d 285; Jordan v. Morten Investment Co., 127 Tex. 37, 90 S.W.2d 241; Garcia v. Moncada, 127 Tex. 453, 94 S.W.2d 123.' Texas Employers Ins. Ass'n v. Kennedy, 135 Tex. 486, 143 S.W.2d 583, 585.

Upon examination of respondent's brief we find a counter proposition that the trial court's judgment should be affirmed because the new concrete roadway, at the time of the accident not being opened for public travel, the only duty owed to Driver by contractor was to properly warn him, and not to willfully, wantonly, or by gross negligence injure him. We think this point should be sustained.

It is fundamental that the liability of contractor must depend upon the failure to properly discharge the duty, if any, which contractor owed to Boyd Driver on the occasion in question. T. J. Mansfield Const. Co. v. Gorsline, Tex.Com.App., 288 S.W. 1067(3).

The duty of contractor to the public was to give adequate warning that this concrete slab was not open to travel. 'If liable under waiver of sovereign immunity, an agency charged with the duty of maintaining public roads or highways is responsible for injuries received on a regular highway, but not for those received on a road not public, not yet opened to traffic, or closed before the occurrence of the accident.' 40 C.J.S., Highways, § 255a, page 295. See also notes 7 A.L.R. 1203, 104 A.L.R. 955, 119 A.L.R. 841. 19 McQuillin: Municipal Corporations, 3rd Ed.Secs. 54.27, 54.98. Restatement of the Law, Torts, Vol. 2, p. 1132, Sec. 418(1)b.

This Court in Shuford v. City of Dallas, 144 Tex. 342, 190 S.W.2d 721, 724, quotes with approval from City of Terrell v. Howard, Tex.Civ.App., 85 S.W.2d 283, 289, reversed on other points 130 Tex. 459, 111 S.W.2d 692, the following statement...