Hanson v. Bailey

• Citation: 83 N.W.2d 252,249 Minn. 495
• Decision Date: 10 May 1957
• Docket Number: 37016,Nos. 37010,s. 37010
• Parties: Roger HANSON, Respondent, v. William BAILEY, Respondent-Appellant, Morse Brothers and Associates, Inc., and Jay W. Craig Company, Appellants-Respondents.
• Court: Supreme Court of Minnesota (US)

Page 252

83 N.W.2d 252

249 Minn. 495

Roger HANSON, Respondent, v. William BAILEY, Respondent-Appellant Morse Brothers and Associates, Inc., and Jay W. Craig Company, Appellants-Respondents.

Nos. 37010, 37016.

Supreme Court of Minnesota.

May 10, 1957.

Syllabus by the Court.

1. A possessor of land is not subject to liability for bodily harm caused to trespassers by his failure to exercise reasonable care to put the land in a condition reasonably safe for their reception, or to carry on his activities so as not to endanger them Unless he knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, and if he knows or reasonably ought to know of the likelihood of their intrusion, he is subject to liability for bodily harm caused to them by an artificial condition thereon, if the condition is one which the possessor has created or maintains and is, to his knowledge, likely to cause death or serious bodily harm to such trespassers and is of such a nature that he has reason to believe that such trespassers will not discover it and if he, the possessor, has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved therein. Restatement, Torts, §§ 333, 335.

2. The term 'limited area' as used in Restatement, Torts, § 335, is not used in the sense of 'small' or as necessarily referring only to a fractional part of the whole, but rather in the sense of a 'delimited' or clearly defined area.

3. Whether a contractor in lawful possession of a road construction zone has given a reasonably adequate warning of construction hazards to trespassing motorists whom he knows, or reasonably ought to know, will enter the construction zone, despite conspicuous 'Road Closed' signs at the zone's termini, is usually a question of fact for the trier of fact.

4. An automobile driver who knowingly ignores conspicuous 'Road Closed' and 'Detour' signs posted at the entrance to a portion of a highway which under authority of law (M.S.A. § 161.03, subd. 7) has been barricaded and withdrawn from public use for construction purposes enters and drives through the construction zone as a trespasser, and while so trespassing he must, in the exercise of ordinary care for his own safety, anticipate at all times that the normal progress of the construction work may quickly convert an earlier condition of safety into one of danger, and therefore, ordinary care commensurate with the dangers attendant upon construction work requires that he proceed with caution and exercise a constant lookout for excavations, obstructions, and activities incident to the progress of the work.

5. Even when an automobile passenger discovers some hazard, before he is chargeable with contributory negligence, he must not only be aware that the driver is oblivious of the danger but there must be facts from which it can be found that he could have given a warning which might have averted the accident.

6. Assumption of risk is to be distinguished from contributory negligence in all cases save where an assumption of risk is so unreasonable that it also constitutes contributory negligence.

7. Passengers in an automobile entering into and passing through a construction zone cannot thereby be said to have Unreasonably exposed themselves to a known danger or a danger that should have been known to them, since they may reasonably assume that the driver will use ordinary care commensurate with the attendant construction hazards.

8. As a general rule there is no right to indemnity between joint wrongdoers, subject, however, to certain exceptions which are not applicable in this case.

Affirmed.

Lewis, Hammer, Heaney, Weyl & Halverson, Duluth, for appellants.

John Spellacy, Spellacy, Spellacy & Lano, Marble, for respondent-appellant.

Cohen, Kaner & Dubow, Virginia, for respondent.

MATSON, Justice.

In three personal injury actions consolidated for trial, all of which arose out of the same automobile accident on a road under construction, we have two spearate appeals from a judgment, one by the two defendant contractors (Morse Brothers and Associates, Inc., and Jay W. Craig Company--both of whom are hereinafter sometimes referred to as defendant Morse) and the other by defendant driver William Bailey.

A cross-claim for damages for personal injuries was asserted against defendant contractors by defendant Bailey, and in turn the defendant contractors asserted a cross-claim for indemnity against defendant Bailey. The trial court directed a verdict against defendant Bailey on issues of negligence and proximate cause. The jury brought in verdicts in favor of each of the three plaintiff passengers occupying the Bailey automobile and also for damages sustained by a fourth plaintiff, as father of one of the passengers, and for a fifth plaintiff, as the owner of the Bailey automobile.

The trial court denied motions for a new trial, and pursuant to its orders of denial, the judgment was entered from which these appeals were taken.

We are concerned with issues as to: (1) The duty of a road contractor to give warning of construction hazards to trespassing motorists who ignore ROAD CLOSED and DETOUR signs at the entrances or termini of a construction zone and travel through the construction area; (2) the negligence of an automobile driver who enters a construction zone; (3) the negligence of and the assumption of risk by guest passengers in an automobile traversing a road under construction; and (4) finally, the right of a defendant road contractor to indemnity from a defendant driver for any damages awarded.

The accident occurred shortly after 9 o'clock on the evening of July 26, 1954, on a portion of Highway No. 53 which was then under construction. The entrance to the 2-mile construction zone was about 4 miles north of Virginia, Minnesota, at the junction of U.S. Highways Nos. 53 and 169 or at what is otherwise known as the North Wye. Not later than July 14, 1954, the Minnesota Highway Department erected barricades at the entrance or southerly terminus of the construction zone; established a detour; and set out signs stating 'Road Closed' and pointing the way to the detour. After the ereotion of the barricades, work was begun on the shoulders of the road. No construction work was done, however, on the paved portion of the road until the day of the accident, July 26. Prior to that day, some persons had driven around the barricades and continued to use the road. During the day of July 26 the blacktop was stripped from the road area adjacent to and under a railroad viaduct located about seven-tenths of a mile from the southern terminus of the construction zone. On either side of the excavation under the viaduct the blacktop was pushed into piles 3 to 5 feet high which extended clear across the paved portion of the road but left a passageway on the southwest shoulder of the road.

In a drizzling rain on the exceptionally dark night of July 26, defendant Bailey, at about 9 p.m., drove his mother's 1951 Cadillac sedan around the barricade at the southern end of the construction area. The conspicuous road barricade was well lighted by flares and Bailey and his three guest passengers were all aware that they were entering a construction zone. Bailey and plaintiff Roger Hanson had been over the road the previous day. Plaintiff Ann Shanedling had passed over it that morning. Despite the road construction work, Bailey and his passengers proceeded toward Sand Lake, which is north of the construction zone, to attend a picnic. Rounding a curve in the highway, Bailey saw--only about 300 or 400 feet away--the lights of an approaching or southbound car which then appeared to him to be pulling onto the highway from the southwest shoulder of the road. Although he could not see beyond the lights of the oncoming car, Bailey did not slacken his admitted speed of 40 to 45 m.p.h. as he passed it. Immediately after passing this oncoming car Bailey, for the first time, saw directly in front of him, 24 to 30 feet away, the windrow of tarvia extending across the highway. He was unable to stop and the car struck the windrow of tarviaand gravel. When the car came to rest the front part of it was over the crest of the pile. Although defendant Morse Brothers had placed in front of the windrow two lighted flares, one of which was still burning a short time before the accident, bailey testified that he saw no lighted flares at the pile before hitting it. The driver of the ambulance, who arrived on the scene a short time thereafter, testified that neither flare was lit when he arrived. All of the occupants of the car were injured and the car was damaged.

1. Under the trial court's charge, the jury could reasonably find that defendant Morse ought reasonably to have anticipated that motorists would enter the construction zone and further that such defendant Morse was negligent in not providing adequate signs to warn trespassing motorists of a road construction hazard such as the windrow of tarvia piled across the highway. Defendant Morse was in possession of the road construction land area pursuant to a contract with the state, and any motorists entering upon that area were trespassers. The trial court in charging the jury as to the law applicable to defendant Morse, as the possessor of the construction area, combined in substance the wording of Restatement, Torts, §§ 333 and 335. These two sections, insofar as here pertinent, provide:

§ 333. '* * * a possessor of land is not subject to liability for bodily harm caused to trespassers by his failure to exercise reasonable car

'(a) to put the land in a condition reasonably safe for their reception, or

'(b) to carry on his activities so as not to endanger them' unless he

§ 335. '* * * knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, (and if he knows or reasonably ought to know of the...