Hogan v. Hill

• Decision Date: 08 December 1958
• Docket Number: No. 5-1665,5-1665
• Citation: 229 Ark. 758,318 S.W.2d 580
• Parties: Ben M. HOGAN et al., Appellants, v. Harold L. HILL, Appellee, and Louis Melton and Louie Moffatt, Cross-Appellants.
• Court: Arkansas Supreme Court

Page 580

318 S.W.2d 580

229 Ark. 758

Ben M. HOGAN et al., Appellants, v. Harold L. HILL, Appellee, and Louis Melton and Louie Moffatt, Cross-Appellants.

No. 5-1665.

Supreme Court of Arkansas.

Dec. 8, 1958.

Mann & McCulloch, Forrest City, for appellant. Fletcher Long, Forrest City, for third party appellant.

McMath, Leatherman & Woods and Willis V. Lewis, Little Rock, for appellees.

WARD, Justice.

This is a personal injury suit, involving three parties, growing out of an automobile collision.

Appellee, Harold L. Hill, who was injured was in an automobile driven by John W. Short in a westerly direction on a 5% down grade. This car collided with a pick-up truck owned by Louie Moffatt and driven in the opposite direction, by Louis Melton. The collision occurred just east of Forrest City on Highway No. 70 which, at that portion of the road, was being repaired by Ben M. Hogan & Company under contract with the Arkansas Highway Commission.

The complaint and amended complaint filed by Hill stated [as to all material portions] in substance: The defendants [hereafter called the Hogan Co.] are partners d/b/a Ben M. Hogan & Company. The Hogan Co. entered into a contract with the said Highway Commission to build and construct approximately 11.7 miles [including the portion where the accident occurred] of grading, minor drainage structures, gravel base, gravel or crushed stone shoulders, widening and resurfacing with asphaltic concrete hot mix, etc., having a crown of 32.4 feet and typical surface 24 feet in width, known as job No. 11563. The Hogan Co., for the protection of the traveling public, agreed to the following provisions in said contract:

'608.14 Public Safety. The Contractor shall schedule his operations in widening existing pavement under traffic so that in no case shall trenches be open on both sides of the existing pavement at one time; the base course for widening on the side first opened shall be completed to the specified grade and shoulder material pulled back against the outside edge off the base course and that side opened to traffic before the trench on the opposite side is opened.

'Appropriate signs, lights and barricades shall be furnished and installed by the contractor to protect public traffic where trenches for widening are open alongside existing pavement.'

It was further alleged that the Hogan Co., under the said contract, was obligated to the public and the plaintiff to perform said work in accordance with 608.14 copied above. The complaint after setting out in detail how the accident happened and how the cars collided, states that the accident was caused by the failure of the Hogan Co. to comply with the safety provisions of the contract, enumerating five such instances. In the amendment to the complaint it was also alleged that it was the common law duty of the Hogan Co. to use ordinary care to protect plaintiff from injury while using the reconstructed portion of the highway, as well as the duty to comply with safety provisions of the contract. The nature and extent of the injuries were set out, and the prayer was for judgment in the amount of $75,680.

The answer by the Hogan Co. was a general denial and contributory negligence on the part of Hill, and further, that Hill was on a joint enterprise with John W. Short who was the driver of the car and who was himself negligent. It was further alleged by the Hogan Co. that the accident was caused by the negligence of Louis Melton the driver of a pick-up truck owned by Louie Moffatt, which truck collided with the car driven by Short. The acts of negligence on the part of Melton were set out. The prayer was that Hill's complaint be dismissed.

In addition to the above answer, the Hogan Co. filed what was termed a 'Third Party Complaint' in which it was in substance stated: If it be found that the Hogan Co. and Melton were both negligent then the former was entitled to contribution against the latter. The prayer was that Hill's complaint be dismissed or, in the alternative, that contribution be awarded.

In answer to the third party complaint, Melton and Moffatt entered a denial, and cross-complained against the Hogan Co. On interrogatories the jury found, after a trial, that: (a) The Hogan Co. was guilty of negligence; (b) Hill suffered damages in the amount of $25,000; (c) Short was not guilty of contributory negligence; Hill was not guilty of contributory negligence; (d) Melton and Moffatt were guilty of negligence; (e) The Hogan Co's. negligence contributed to the cause of damages 80% and Melton and Moffatt's negligence 20% and; The Hogan Co's. negligence did not contribute to Melton and Moffatt's damages. Judgments of the trial court were entered in accordance with the jury findings. The Hogan Co. and also Melton and Moffatt prosecute this appeal.

The Hogan Co. relies on three grounds for a reversal. One. Plaintiff introduced no substantial evidence of negligence. Two. It was error for the court to admit Part 6 of the contract in evidence. Three. It was error to give Hill's instruction No. 7. In addition to the above it is insisted that the verdict is excessive.

One. Substantial evidence. At approximately 6:15 P.M. on March 15, 1957, John W. Short, accompanied by Hill and one other passenger, was descending a hill on U. S. Highway No. 70, just east of Forrest City headed west for his home in Little Rock. At the same time Louis Melton was ascending the hill from the opposite direction in a pick-up truck owned by Louie Moffatt. As Melton approached the Short car and in an effort to pass it the right rear wheel of the pick-up truck ran off the edge of the pavement on its right side or the south side of the highway, and the truck swerved across the center line of the pavement into the path of the Short car. This forced the Short car onto the north shoulder of the highway where it turned over, killing Short and injuring Hill. At the time of the accident that portion of Highway 70 was being reconstructed by the Hogan Co. as a part of State Highway Job No. 11563. The work included repairing shoulders, and widening and resurfacing with hot asphalt mix. The highway, before repairs, was paved with concrete 20 feet wide. At the time of the collision the north shoulder had been excavated and refilled with a sandy material some two or three months previously. There was testimony that it had rained considerably in the meantime and that the shoulder had become somewhat rough and soft, that it was as much as 3 inches lower than the pavement, and that it had not been worked since first installed. There was testimony on the part of the Hogan Co. that adequate warning signs were installed on both sides of the road, but there was testimony by appellee's witnesses from which the jury could have found otherwise.

The shoulder on the south side of the road at the scene of the collision had been excavated to a depth of about 18 inches below the pavement. This excavation had just been completed a few hours before the accident and, of course, had not been filled. It is admitted that the portion of the highway in question bears heavy traffic--approximately 4,000 vehicles each day. There was a great deal more testimony, much of it conflicting, by a large number of witnesses but we feel it would serve no useful purpose to set it out, for we think it is clear from the above that there was substantial evidence to support the jury's finding of negligence on the part of the Hogan Co.

Two. Part 6 of the Contract. The Hogan Co. contends it was reversible error for the court to allow the introduction in evidence of Part 6 of the contract between it and the Highway Commission. For several reasons we think no such error appears in the record.

It will be noted that Hill's complaint states a cause of action in tort based not only on the usual common law of negligence but based also on the Hogan Co.'s failure to comply with the regulations in the contract relative to public safety. This, we think he had a right to do. See: Prosser on The Law of Torts, 1955 Second Edition § 81 at page 478 and page 482; Ann.Cas.1913C, p. 217; Pugh v. Texarkana Light & Traction Co., 86 Ark. 36, 109 S.W. 1019; Hill v. Whitney, 213 Ark. 368, 210 S.W.2d 800, and; Collison v. Curtner, 141 Ark. 122, 216 S.W. 1059, 8 A.L.R. 760.

When Hill offered in evidence, as Exhibit 5, the contract between the Hogan Co. and the Highway Commission, this proceeding occurred:

The Court: 'Is it necessary to put it all in there?'

Atty. for Hill: 'We think the whole contract is pertinent.'

The Court: 'Without objection let it be introduced.'

Atty. for the Hogan Co.: 'We object to certain portions of it, that is set out in plaintiff's complaint.'

The Court: 'That is the part you are objecting to?'

Atty. for the Hogan Co.: 'We object to all of what is known as 'Part 6' in there.'

The Court: 'Is that the part that is set out in plaintiff's complaint?'

Atty. for Hill: 'Yes, Sir.'

The Court: 'The objection is overruled and the plaintiff will be permitted to introduce the contract.'

We have already said that Hill had the right to base a tort action on the failure of the Hogan Co. to comply with the safety provisions in the contract. This being true it must necessarily follow that the jury must know the contents of the contract and also know the safety provisions. It is conceivable of course that in many cases, or even in this case, some parts of the contract would not be relevant. In such event, when the entire contract is offered in evidence by the plaintiff as here, the burden would be on the defendant to make it clear to the court just what part of the contract is objectionable and the specific reasons therefor. In this instance Hogan did point out as objectionable that part of the contract 'that is set out in plaintiff's complaint'. The part referred to is shown as '608.14' and is set out in full, supra, in this opinion. Provision 608.14, it must be understood, is only a small portion of Part 6 which...