Hill v. Whitney

• Decision Date: 26 April 1948
• Docket Number: 4-8512
• Parties: Hill v. Whitney
• Court: Arkansas Supreme Court

210 S.W.2d 800

213 Ark. 368

Hill v. Whitney

No. 4-8512

Supreme Court of Arkansas

April 26, 1948

Rehearing Denied May 24, 1948.

Appeal from Boone Circuit Court; Garner Fraser, Judge.

Affirmed.

S Hubert Mayes and Buzbee, Harrison & Wright, for appellant.

Virgil D. Willis and W. S. Walker, for appellee.

OPINION

Smith J.

Appellants, who are general road construction contractors, entered jointly into a contract with the State Highway Commission to repair and rebuild about seven miles of highway No. 7, south of Harrison, Arkansas. Crooked Creek crosses this segment of the highway near its center. The highway had been slightly relocated at the point where it crossed the creek, and the construction work of grading and graveling had been almost completed on December 7, 1946. A new bridge was to be built adjacent to and east of the old bridge. Appellants had built the road up to the edge of the creek, and on both sides of it. The road came to the edge of the bank of the creek on the south side, but not quite so near on the north side of the creek. The elevation of the rebuilt road at the creek was about five feet higher than the floor of the old bridge. The old bridge remained in service, and as one approached it from the north the traveled way of the highway swung in a well defined turn to the right onto the old bridge. Once across the bridge some twenty or thirty feet, there was a sharp turn to the left, up a short steep grade back to the rebuilt highway.

On the night of December 7, 1946, appellee traveled highway No. 7 south from Harrison, to escort a young lady from a party to her home beyond or south of Crooked Creek. He testified that as he came into Highway 7, south of Harrison, there were no signs of a closed highway, which was a much traveled road. The slight swing of the road turning south to the bridge was clearly visible and the bridge was crossed and the young lady was taken home without mishap. Soon thereafter he started to return to Harrison, traveling from south to north. There were no slow or other warning signs as he approached the creek from the south. This statement of facts is taken from appellee's testimony, and does not appear to be disputed. The road was apparently straight to the bank of the creek, where there was a perpendicular drop of about twenty feet. Appellee had never traveled that portion of the road before in that direction, but had traveled it from the opposite direction in escorting the young lady home. The view of the creek and the bridge traveling north over it was entirely different from that presented when approaching it from the opposite direction. Just at the edge of the twenty-foot precipice, and not more than six feet from it, the Highway Department had erected a barricade, which, if observed, would have indicated that a sharp turn to the left was required to remain in the road and cross the bridge. Had appellee observed this barricade and made this turn he would have recrossed the bridge as safely as he did in going over it.

The Highway Department had placed a single striped board eight to ten inches wide, and about eight or ten feet long in the center and across the road, not more than six feet from the creek bank. On the board there were alternating, diagonal stripes of red and white making what was called a "scotch light barricade," which could be seen several hundred feet. But this barricade was not placed at the point of turning onto the bridge, but was some twenty or thirty feet north or nearer the precipice. In other words, one would pass the turning off point before reaching the barricade. There were no lights burning and appellee testified that the road beyond the point of turning off to the bridge, and leading into the bank of the creek appeared just like the rest of the road, and that the only sign of any kind was the single board at the edge of the creek bank.

We think this testimony made a question for the jury as to negligence. Appellants say that they were not negligent as there was no failure to perform any duty on their part, as it was the duty of the Highway Department to safeguard the place of crossing the bridge.

It is true the barricade was erected by the Highway Department and was restored by the Department after it had been knocked down, nevertheless we think it was the duty of appellants both as a matter of contract, and of common law obligation, to warn the traveling public of a hazard which they had created, and to use ordinary care to protect the public from the danger incident to this hazard.

Now it is true that appellants were under no contract to relocate the bridge, but they had built the dump or roadway to the point where the new bridge was to be located, and their contract covered the work on both the north and south side of the bridge. Paragraph No. 7.9 under which appellants were operating reads as follows:

"The Contractor shall provide, erect and maintain all necessary barricades, suitable and sufficient red lights, danger signals and signs and take all necessary precautions for the protection of the work and safety of the public. Highways closed to traffic shall be protected by effective barricades on which...