Gold v. Kiker

• Decision Date: 22 November 1939
• Docket Number: 98.
• Citation: 5 S.E.2d 548,216 N.C. 511
• Parties: GOLD v. KIKER et al.
• Court: North Carolina Supreme Court

5 S.E.2d 548

216 N.C. 511

GOLD v. KIKER et al.

No. 98.

Supreme Court of North Carolina

November 22, 1939

Civil action for recovery of damages for alleged wrongful death. C.S. § 161.

On the night of May 19, 1938, plaintiff's intestate, Coy Auston while traveling asleep in the cab of a truck operated by one I. D. Walker, enroute from Philadelphia to Florida, was killed when the truck collided with west abutment wall of a bridge over a prong of Swift Creek approximately two miles south of Whitakers, North Carolina, and two miles north of Battleboro on State Highway project No. 1647, and burned.

Plaintiff alleges that the death of intestate was proximately caused by the joint and concurrent negligence of the defendants in failing in their duty to provide adequate warning signals along the said highway and at the bridge to indicate to the traveling public the dangerous condition created there by widening of the old paved portion of the highway.

Plaintiff further alleges and offered evidence tending to show:

1. That at that time defendant Ames & Webb, Inc., under contract with State Highway and Public Works Commission of North Carolina, dated December 3, 1937, for widening the highway between said points adjacent to said bridge, had widened same by laying a strip of concrete paving 4 feet wide along the west side of and adjoining the old concrete road, from Whitakers to a point 20 feet north of said bridge; thus leaving the west abutment of the bridge 4 feet east of the western margin of the added strip, and that said defendant "was waiting on the defendants, Kiker & Yount, to complete the bridge project" before returning to fill in the space between the end of above strip and the bridge.

2. That defendants Kiker & Yount entered into contract with State Highway and Public Works Commission of North Carolina, dated January 28, 1938, for the construction of all bridge structures on said State Highway project No. 1647 between said points, including the bridge at which plaintiff's intestate met his death, and entered upon the performance of said contract about February 14, 1938; that, under the terms of their contract, and during the construction of said bridge, these defendants were required to build a detour bridge for the accommodation of traffic over said road; and that prior to May 19, 1938, they had caused piling to be driven adjacent to and west of the bridge in question for the purpose of constructing thereon a temporary detour bridge. Plaintiff offered in evidence part of answer of these defendants admitting these facts, but averring that they "had not touched the bridge or in any way interfered therewith or done any thing either to the bridge or highway to make the same more hazardous than it had been since its construction many years prior thereto".

3. That on May 19, 1938, no part of the work covered by the contracts of Ames & Webb, Inc., and of Kiker & Yount with State Highway and Public Works Commission had been accepted by said Commission.

4. That these contracts provide that the construction work included therein is to be done in accordance with the specifications contained in the published pamphlet entit led "State of North Carolina, State Highway and Public Works Commission specifications April 1, 1935", and supplements thereto which are by reference incorporated in and made a part of the contracts.

5. That said specifications provide, inter-alia, that: (a) Where used therein the word "contractor" shall mean any individual, firm or corporation with whom a contract is made by the State Highway and Public Works Commission. Paragraph 5.4 of Section 5, page 15. (b) "Where the road to be constructed under the specifications follows the general route of an existing road which is wholly or in part used by the traveling public the contractor shall at his own expense repair and maintain in safe, passable and convenient condition such part or parts of such existing roads as are being so used between extreme limits of the work under this contract during the entire time from the award of this contract until the final acceptance of the work hereunder and all such existing road end parts thereof and construction thereon shall be under the jurisdiction of the contractor and he shall be liable therefor." Paragraph 4.5, Section 4 page 12.

(c) "The contractor shall provide, erect, maintain and illuminate where necessary all barricades placed at the beginning or end of the construction project and any barricades that are needed in case through detour intersects or crosses construction work *** The contractor shall and be responsible for all local detour signs and all barricades". Paragraph 7.7 of Section 7 page 22.

6. That in the contract of Ames & Webb, Inc., it is provided: "Maintainance of Traffic: The roadway contractor will be required to take care of all local and through traffic within the limits of this project during construction by using the present road where possible and constructing and maintaining a suitable detour and crossings where necessary, all of which shall be done at his own expense. He shall place and maintain such signs, danger lights and watchmen as in the opinion of the engineer may be necessary."

Defendants respectively deny the allegations of duty to warn, of breach of duty and several alleged acts of negligence, and aver that proper warning signs, flares and lights were displayed and that the death of intestate was "proximately caused by the sole negligence of the driver of the truck in failing to keep a proper lookout."

Defendants Kiker & Yount aver that at the time of the accident in question the actual repair of the bridge itself had not begun, and say that, while they had driven some piling in Swift Creek on the west side and near to the bridge, they were not charged with any duty to warn the public of any danger on the said bridge before they had begun to dismantle it or in some way to increase the hazard of travel over it.

Defendants Ames & Webb, Inc., aver that on May 19, 1938, they had completed the construction of the strip of paving to a point 20 feet on each side of and in front of the bridge, and, as required by their contract with the State Highway and Public Works Commission, were deferring the paving of that space until the bridge project had been completed by Kiker &amp Yount; that some time prior thereto Kiker & Yount had hauled material to the bridge project and had driven piling in the stream on the west side of the bridge for the purpose of building a temporary bridge to be used by the traveling public while the original bridge was being...