Holland v. Phillips
| Decision Date | 21 September 1956 |
| Docket Number | No. 2,Nos. 36275,36323,s. 36275,2 |
| Citation | 94 Ga.App. 361,94 S.E.2d 503 |
| Parties | L. A. HOLLAND et al. v. Mrs. G. D. PHILLIPS et al. SOMERS CONSTRUCTION COMPANY, Inc., v. Mrs. G. D. PHILLIPS et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. It is not necessary to sustain the cause of action that one suing for the value of the life of a guest passenger in an automobile whose death allegedly resulted from the negligence of third parties should allege facts negativing any relationship between the guest and the driver which would result in imputing the driver's negligence to such deceased guest.
2. The special demurrers set forth in this division of the opinion are without merit.
3. The contract between Holland Construction Co. and the State Highway Department in which the prime contractor undertook the duty of warning the public of danger incident to the construction work inured to the benefit of the public and of the plaintiff, and was properly pleaded. It did not purport to fix the standard of care to be exercised by the codefendant subcontractor. Since it was relevant to the cause of action the special demurrers of the latter were properly overruled.
4. The allegations of the petition in this case show that the defendant were prime contractor and subcontractor respectively under a contract of the former with the State Highway Department to repair a certain stretch of highway and build a bridge, and that the latter was employed by the former, under its supervision and direction, to construct the bridge. The prime contractor undertook by contract to post warnings in advance of any place on the project where construction would interfere with travel and was liable for failure to exercise ordinary care to comply with this duty which was undertaken by it and which inured to the benefit of the traveling public. The subcontractor is also liable for failure to exercise ordinary care to warn persons lawfull using the road of hazards created by its own activities which render the incompleted bridge impassable. The allegations of the petition accordingly set out a cause of action as against both defendants.
Mrs. G. D. Phillips filed an action for damages in the Superior Court of Toombs County against Somers Construction Co., Inc. and Holland Construction Co. for the death of her son. Demurrers of each of the defendants were overruled, and the bills of exceptions, here considered together, assign error on these rulings.
The petition as amended alleges in substance that the plaintiff's deceased son was a gratuitous guest passenger in an automobile owned by and solely in control of the operator, Hall; that the driver was proceeding along highway No. 147 in the exercise of ordinary care; that on this highway was a partially completed bridge with an intended span of 189 feet, of which only 81 feet on the side which the automobile approached was finished; that the plaintiff's son and the driver were unfamiliar with the road; that they were traveling, at about 10:30 p. m. at a speed of approximately 40 miles per hour; that they had traveled 3 or 4 miles along the highway and passed no signs, lights, barricades or other warnings that the bridge was under construction; that due to the night, the color of the road and the color of the surface of the completed portion of the bridge they were unable to detect that it was under construction and had an open gap therein until too late to stop the car, which fell into the creek bed killing the plaintiff's son. The defendant Holland Construction Company had contracted with the State Highway Department to pave a portion of highway and to erect a bridge in connection therewith over a creek, one paragraph of which provided as follows: It is alleged that the defendant Holland 'employed the defendant Somers to construct the aforesaid bridge under its directions and supervision, with the defendant Holland being responsible for said construction.'
It is further alleged that although the highway over which the plaintiff's son was riding toward the bridge was under construction, the prime hard surfacing had been applied, the shoulders were completed and the road was open to travel and being used by the general public; that the prime contractor was in control of the road and bridge and had actual knowledge that no adequate signs or lights had been posted to warn the traveling public of the hazard of the open bridge, but sat idly by and did nothing to prevent the continuance of this negligence. Negligence is charged against both defendants in failing to erect any signs, warning lights, barricades, or other notice of the open bridge.
J. Ellis Pope, Alvin L. Layne, T. Ross Sharpe, Lyons, for L. A. Holland.
B. P. Jackson, Jackson & Graham, Duncan Graham, Vidalia, for Somers Const. Co.
Nat O. Carter, Wm. T. Darby, Vidalia, for Mrs. Phillips.
1. It is not necessary for an injured guest plaintiff, or one suing for damages resulting from the death of such guest passenger, to allege freedom from negligence on the part of the guest or to negative any relationship between the...
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