Evans v. Shea Bros. Const. Co.

• Decision Date: 10 June 1927
• Docket Number: 592.
• Citation: 138 S.E. 411,194 N.C. 31
• Parties: EVANS v. SHEA BROS. CONST. CO.
• Court: North Carolina Supreme Court

138 S.E. 411

194 N.C. 31

EVANS v. SHEA BROS. CONST. CO.

No. 592.

Supreme Court of North Carolina

June 10, 1927

Appeal from Superior Court, Graham County; Stack, Judge.

Action for damages by Mary Evans against the Shea Bros. Construction Company. Judgment was rendered for plaintiff, and defendant appeals. New trial.

Instruction that road contractor was bound to maintain barrier before fill injuring traveler in automobile held error; only "ordinary care" being required.

This is an action for actionable negligence brought by plaintiff against defendants for injuries sustained. Plaintiff, on the 10th day of July, 1926, was in a Ford car with her husband going to Yellow Creek; her son Cecil Evans was driving the car. The defendants, contractors under the North Carolina state highway commission project No. 930, were constructing a part of state highway No. 108, between Brooks Gap and Yellow Creek in Graham county, crossing Service branch, between these two points.

John Shea, one of the defendants, testified, in part:

"This particular fill across the Service branch, there were two roads there, and the roads were in a curve, and, in order to straighten the road up, I had to make a high fill across Service branch, and started the narrow fill with wheelers across the Service branch, and this road around was kept open at all times. Connor Bros. went around there. We went around; different people went around all the time. It was kept open and worked by the overseer. *** When we stopped working, I put a 50-inch pipe across this fill, and somebody rolled it away. I had not worked on it in three weeks. It wasn't long before the accident, because I was up there a few days before that myself. *** It was impossible to build it all across there at one time; have to build it a row at a time. It was dangerous to go across there. I did not put signs there, because there was a public road that you could go. The fill was not completed."

Cecil Evans testified, in part:

"We started down to Yellow Creek, and on the right-hand side going down was a big dump and curve, and, after you got out of this curve from the left-hand side of the road, you hit the first part of this dump, and when you hit it, it is rough, and slopes up a little bit, and hit the north side next to Yellow Creek. It is a steep bank, and I couldn't pull it with the speed I had, and I started back to get more speed, and the loose dirt caught me, and I turned over the bank. I was right on the fill before I could see it. I could see the ridge, but could not tell what it was. I don't know whether it was a road before that or not.

"Q. Could you tell whether there had been tracks on that part of the roadway where your car turned over? A. The witness answered, 'Yes.' The fill must have been somewhere from 40 to 50 feet long, 8 to 10 feet high. The top of the fill was 6 or 6 1/2 feet wide. The fill was rough, and when you got close to the top was a big bank of dirt that looked like it had been dumped out, and tracks going over it. I started back to get a better start, and the loose dirt caught my wheel, and turned me over the bank. I did not see any detour sign or barrier before I got to that point of the road. That was my first trip over the road. I did not know whether it was a public road or not."

The issues submitted to the jury, and their answers thereto, were as follows "(1) Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

(2) What damage, if any, is the plaintiff entitled to recover of the defendant? Answer: $750."

After deliberating for some hours, the jury returned to the box and requested further instructions, and asked the following question:

"One thing we want to know is, Is the defendant responsible if he didn't keep this barrier in the place where it looked like the road turned? Would he be responsible if he

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