Harkins v. State Through Dept. of Highways

Decision Date22 April 1971
Docket NumberNo. 3371,3371
Citation247 So.2d 644
PartiesWalter E. HARKINS et al., Plaintiffs and Appellants, v. STATE of Louisiana, Through the Louisiana Board and/or DEPARTMENT OF HIGHWAYS, Defendant and Appellee.
CourtCourt of Appeal of Louisiana — District of US

Sandoz, Sandoz & Schiff by Leslie J. Schiff, Opelousas, for plaintiffs-appellants.

Burton, Roberts & Ward by Charles W. Roberts, Baton Rouge, for defendant-appellee.

Before FRUGE , SAVOY and CULPEPPER, JJ.

CULPEPPER, Judge.

This is a suit for damages arising out of an automobile accident. The plaintiff, Mr. Walter A. Harkins, was the driver of the automobile which struck a concrete bridge. His wife, Mrs. Gaynell Harkins, was a passenger. Both received serious personal injuries. Mrs. Harkins died about a month after the accident. Mr. Harkins seeks damages for his own injuries and he and four major children seek damages for the wrongful death of Mrs. Harkins. The defendant is the State of Louisiana, through the Department of Highways, whose employees are alleged to have been negligent in failing to erect adequate warning signs at the site of certain highway repairs. The district judge found the Highway Department free of any negligence which was a legal cause of the accident. Plaintiffs appealed.

The accident occurred at about noon on December 2, 1968. The weather was cloudy but dry and visibility was good. The scene is on U.S. Highway 190, about 4 1/2 miles west of Krotz Springs. At this point the highway has four lanes, two for east bound and two for west bound traffic, separated by a wide neutral ground. The speed limit is 70 miles per hour.

On the morning of the accident, a maintenance crew for the Department of Highways repaired a soft spot in the right-hand lane for east bound traffic about 175 feet west of the concrete bridge. The work consisted of filling an area about five feet square with 'hot mix', which required two or three hours to harden. While this work was in progress, the crew placed a 'ROAD WORK AHEAD' sign about 2,000 feet and a 'MEN WORKING' sign about 1,000 feet west of the repair site. Each sign was diamond shaped and 30 30 . They were attached to stands 46 inches high so that the bottoms of the signs were about 12 inches above ground level. The signs were positioned on the right-hand shoulder facing east bound traffic. In addition, a flagman with a 'STOP AND SLOW' sign directed traffic. Also, a dump truck, on which was mounted a 'MEN WORKING' sign and a blinking red light, was parked in the right hand lane near the repair area.

The work was completed about 10:00 a.m. When the crew departed the only warning devices left were the two above described signs 1,000 feet and 2,000 feet west of the repair site and a barricade across the right-hand lane a short distance west of the soft 'hot mix'. This barricade is 3 1/2 feet tall and is constructed of a 2 8 board, 12 feet in length and supported on each end by an A-frame . The board is painted with black and white stripes and in the center is a sign on which is painted an arrow with the words 'ONE-WAY'. No signs were left to give specific warning of a barricade or that a lane was closed or at what distance the repair work should be anticipated.

Between the time the repair crew left at about 10:00 a.m. and the time of the accident at about 2 o'clock noon, an unknown motorist struck the barricade and knocked it down onto the highway. State Trooper Jerry Quebedeaux testified it was reported to him by the Krotz Springs city marshal that the barricade had been knocked down and the marshal was en route to 'check it out' when the Harkins accident happened. Mr. Harold Fontenot, foreman of the repair crew, testified he received word from the Krotz Springs police that someone had hit the barricade and he went to the scene but did not arrive until 1:00 p.m. By that time another highway crew had already picked up the pieces of the barricade and the signs .

At about noon, Mr. Harkins was driving his automobile in an easterly direction at a speed of about 60 miles per hour. He gave conflicting versions of the accident. In his original petition and in a pretrial deposition, Harkins stated that as he approached the scene he was traveling in the right-hand east bound lane and came upon slower moving traffic in that lane. He said he turned into the left-hand lane and passed three cars and was still in the left lane when his wife suddenly said 'There's a barricade.' He stated that at about the same time he saw the barricade in the left-hand lane, but it was not across the lane. Instead, it was parallel to the center line. Harkins said he immediately applied his brakes but struck the barricade and then lost control of his vehicle and ran into the concrete bridge on the left side of the highway.

Later, Harkins filed a supplemental petition in which he gave the version of the accident to which he testified at the trial. Harkins says that after he saw certain pictures taken by the state police showing his skidmarks starting in the right-hand lane and after he learned that an eye-witness, Mr. James F. Hopson, was going to testify that Harkins was in the right-hand lane when he reached the repair site, he realized that his original impression of the facts was erroneous. At any rate, he testified at the trial that as he approached the scene he was in the right-hand lane. He does not mention passing any other vehicles. As to the barricade, Harkins testified that his wife saw it first and said 'There's a barricade.' At about the same time he saw the object but recognized it only as something sticking up in the road about three feet high. He did not recognize it as a barricade. In any event, he immediately applied his brakes and tried to turn to the left but struck the barricade and then lost control of his vehicle and struck the bridge abutment. The right front of his automobile struck the corner of the bridge and then the rear swung around and the automobile came to rest near the center of the highway about 50 feet onto the bridge.

Under both his versions of the accident Harkins says he did not see the signs 2,000 feet and 1,000 feet west of the barricade.

Mr. Jerry Quebedeaux, the state trooper who investigated the accident, testified as to certain physical facts. He says that the Harkins vehicle left skidmarks beginning in the right-hand lane at the repair site and going to the left across the left lane a distance of 165 feet to the bridge. The trooper testified that when he arrived he saw members of the highway department crew picking up pieces of the barricade and placing them in a truck. He also testified that he saw the two warning signs on the right-hand shoulder west of the repair site.

Mr. James F. Hopson testified that he was driving in an easterly direction in the left-hand lane about 150 yards behind Harkins, who was in the right-hand lane and that both were going about 60 miles per hour. Hopson also saw no warning signs. He didn't even see the barricade. He says that the Harkins vehicle suddenly swerved to the left and struck the bridge on the left-hand side. Hopson stopped near the bridge and went to the aid of the injured couple.

The first issue is the sufficiency of the warning signs and the barricade left by the defendant's repair crew. The Louisiana Highway Regulatory Act provides that the Department of Highways shall adopt a manual giving specifications for a uniform system of traffic control devices, to be used by both the state and local authorities where appropriate, LSA-R.S. 32:235. A copy of the Department's 'Manual on Uniform Traffic Control Devices' is filed in evidence. With regard to warning signs in general the manual states at page 157:

'Warning signs are the most important type of signs used to protect traffic, equipment and workmen where road construction or maintenance operations are underway. If drivers are properly alerted to possible dangers ahead and so reduce their speed to meet the anticipated hazards, they will be able to deal with whatever special conditions are present.'

The manual contains the following instructions regarding warning signs for highway construction or maintenance at page 157:

'Where major construction or maintenance is under way on a highway and any part of the roadway is obstructed or closed, it is necessary to give special advance warning, and for this purpose a series of Construction Approach Warning signs is provided. These signs are for the purpose of alerting traffic, well in advance, to serious obstructions or restrictions due to road work. In rural areas, there may be at least three such signs, at 500, 1,000 and 1,500 feet in advance of the point of restriction.

'All advance warning signs shall be diamond shaped, 48 by 48 inches in size. They shall be mounted on two posts from 6 to 12 feet from the pavement edge or on wing barricades.'

The manual also requires at page 142 that all roadside signs should be mounted so that the bottom of the sign is approximately five feet above pavement level.

Under the provisions of the manual, the barricade described above is in 'Class II', which may be used to close part of a roadway. The manual states that it is desirable to also use a line of cones to guide traffic around the barricade.

It is obvious that the repair crew in this case did not use the warning signs and cones recommended by the manual. However, the defendant contends this does not necessarily lead to the conclusion that the crew was negligent. We agree that the manual is merely persuasive. The failure to comply with its requirements is not negligence per se, as in a case of violation of a highway safety statute, Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962). Hence, in determining whether the repair crew was negligent we must also look to the jurisprudence which has established the duty of the Highway Department to provide adequate warning of hazards in...

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