Holmes v. T. M. Strider Co.

• Decision Date: 05 June 1939
• Docket Number: 33736
• Citation: 186 Miss. 380,189 So. 518
• Court: Mississippi Supreme Court
• Parties: HOLMES v. T. M. STRIDER CO. et al

189 So. 518

186 Miss. 380

HOLMES v. T. M. STRIDER CO. et al

No. 33736

Supreme Court of Mississippi, Division B

June 5, 1939

APPEAL from the circuit court of Claiborne county HON. R. B ANDERSON, Judge.

Action by Mildred Holmes against T. M. Strider & Co. and others for injuries received when automobile in which plaintiff was riding fell from bridge on which named defendant had performed repair work. Judgment for defendant and plaintiff appeals. Reversed in part, affirmed in part, and remanded.

Reversed in part, affirmed in part, and remanded.

J. D Thames and Vollor & Teller, all of Vicksburg, for appellant.

Creator of dangerous condition must bear consequences of his negligence.

Where one creates a situation which is inherently dangerous for persons who thereafter use it in the way it is intended to be used, or in the way that the creator of the danger knows it is to be used, the person from whose affirmative act the danger arises is responsible to one receiving injuries through such use.

Clemens v. Benzinger, 221 A.D. 586, 207 N.Y.Supp. 539; Evansville & Terre Haute R. Co. v. Crist, 2 L.R.A. 450; Heaven v. Pender, L. R. 11, Q. B. Div. 503; A. & V. Ry. v Graham, 157 So. 241, 171 Miss. 695; City of Jackson v. Richards, 186 So. 658; Public Service Corp. v. Watts, 150 So. 192, 168 Miss. 235; Price v. Parks, 173 So. 903, 127 Fla. 744.

As we have shown, these contractors' presence on this bridge, their work thereat and compensation received therefrom was all traceable to, and is governed by, a contract voluntarily entered into. No reason existed to prompt these contractors to bid on this project or to assume the obligations imposed thereby except their own business desires to personally profit therefrom, but they, of their own free will, with the contract (and by the term "contract" we include, as the contract did, the specifications, proposals, bond, plans and special provisions) before them, elected to bid on work to be done and extra work to be performed strictly in accordance with the terms of these instruments. The public, through its State Highway Commission, agreed to pay unto these contractors the price stipulated in the contract. These contractors knew the obligations set forth in the contract and their corresponding duties and liabilities to the commission and to the public generally.

Wunderlich v. State Highway Commission, 184 So. 456.

An independent contractor engaged in the construction, maintenance, or repair of a municipal bridge is liable for injuries sustained by a third person as a result of conditions brought about by such contractor.

11 C. J. S., page 1100, sec. 61; Wade v. Gray, 61 So. 168, 104 Miss. 151, 43 L.R.A. (N.S.) 1046.

These contractors knew that they were responsible "for accidents" on a temporary structure or any part thereof, that is, when the accident resulted from their negligence.

These contractors voluntarily assumed the duties and received the compensation provided for by the contract. This appellant is a cripple for life because they did not perform these duties. Certainly, as held in Wade v. Gray, 104 Miss. 151, "the contractor is liable in tort to any injured by his neglect."

Day v. Royce Kershaw, Inc., 187 So. 221; Y. & M. V. R. Co. v. Sideboard, 133 So. 669, 161 Miss. 4; A. & V. Ry. Co. v. Graham, 157 So. 241, 171 Miss. 695.

In the Graham case, the Highway Department was actually maintaining the bridge on U.S. 80, but that did not relieve the railway company from its duty to maintain; and certainly here, when, not passively but actively, these contractors affirmatively and consequently knowingly subjected the public to loss of life and limb (after they had agreed to be responsible in damages) they cannot be heard to hide behind the skirts of the department.

Neither Highway Department nor its agents can validly accept defective work.

Even had the Highway Department sought to accept this work, which the parties to the contract knew to be unworthy of acceptance, its act in so doing would have been ineffectual and void.

The supplemental agreement was not a release.

Simply because the Highway Department told these contractors that it would eliminate the danger was no release until the danger thus created was actually eradicated. The agreement was ineffectual to operate as a release from damages until the work had been done, the danger rectified, and the public, consequently, saved from harm.

The fact that the Highway Department failed, or delayed, to do that which it had agreed to do furnished no release no more than it eliminated the consequences of the original, continuing wrong--or else there would not have been two fatal, horrible accidents, with consequent death to and destruction of human beings. The Highway Department merely joined or concurred in the negligence of the original wrongdoer, and, until the department actually eliminated the danger, the liability existed and continued against the creator of the dangerous condition.

Hartley v. Rochdale, 2 K. B. (Eng.) 594, 3 B. R. C. 993, 77 L. J. K. B. (N.S.) 884, 72 J. P. 343, 99 L. T. (N.S.) 275, 24 Times L. R. 625, 6 L. G. R. 858.

It is settled in this case that tort-feasors may be sued jointly and severally, and that one joint tort-feasor is not released from liability by suit or judgment against the other, but that it requires a satisfaction or payment to satisfy the liability against joint tort-feasors.

Sawmill Construction Co. v. Bright, 77 So. 316, 116 Miss. 491; Nelson v. I. C. R. R. Co., 53 So. 619, 98 Miss. 295, 31 L.R.A. (N.S.) 689; Moore v. Foster, 180 So. 73; Miller v. Phipps, 137 So. 479, 161 Miss. 564; City of Lumberton v. Shrader, 168 So. 77, 176 Miss. 272; Atkinson v. Town of Decatur, 95 So. 689, 151 Miss. 707; Town of Senatobia v. Dean, 127 So. 773, 157 Miss. 207.

The fact that someone else may have also been guilty of negligence, may have participated in the wrong, and may therefore be also liable, is no excuse and furnishes no immunity to the original wrongdoer.

Oliver Construction Co. v. Dancy, 102 So. 568, 137 Miss. 474; Robbins v. The City of Chicago, 4 Wallace (71 U.S.) 657, 18 L.Ed. 427; 29 C. J. 677, sec. 442.

Directions of ministerial officers of State Highway Department are subject to terms of contract.

State Highway Dept. v. Duckworth, 172. So. 148, 178 Miss. 35; Morgan-Hill Paving Co. v. Fonville, 140 So. 575; Blendinger v. Souders, 2 Monaghan (Pa.) 48; Osborne v. Morgan, 130 Mass. 102, 39 Am. Rep. 437; Wade v. Gray, 61 So. 168, 104 Miss. 151; 69 A.L.R. 489; Kane v. Indianapolis, 82 F. 770.

The negligence of contractors was a proximate cause of injury.

Conner v. State, 177 So. 46, 179 Miss. 795; Superior Oil Co. v. Richmond, 159 So. 850, 172 Miss. 407; Ross v. Louisville & N. R. Co., 172 So. 752, 178 Miss. 69; Soloman v. Continental Baking Co., 160 So. 732, 172 Miss. 388.

Dangerous condition, created by appellees, constituted nuisance per se.

Weber v. Buffalo R. Co., 20 A.D. 292, 47 N.Y.Supp. 7.

Admission into evidence of acceptances on Projects 168-A and 168-B was error.

What has heretofore been said in this brief applies in all of its force to the appellee, The Vincennes Steel Corporation, who, for and in conjunction with T. M. Strider & Co., actually created the dangerous situation which caused the injury herein complained of and which formed the basis of this suit.

Chaney & Culkin, of Vicksburg, for appellee, T. M. Strider & Company.

The appellees were fully and finally discharged from any further liability by the Highway Commission several months prior to the time of the accident.

The work on the bridge in question, even before the final discharge of the appellees, was, by the supplemental agreement, eliminated from the original contract. The supplemental agreement constituted a full release of the appellees for the work to be performed on the bridge.

The general rule is that where the contractor is released and steps out of control of the premises, he incurs no further liability to third persons. The Highway Commission retained the right to alter the original contract and to make supplemental agreements, in the discretion of the director. In the exercise of this discretion, the contract was altered and the supplemental agreement was entered into. The appellees were not consulted as to the advisability of making the change. They were simply notified that the change would be made, and they had no choice in the matter. It follows, therefore, in addition to the general release, the appellees were fully released from liability in connection with the work to be done on the bridge.

Mayor, etc., City of Vicksburg v. Holmes, 106 Miss. 234, 63 So. 454, 51 L.R.A. (N.S.) 469; Herring v. Planters' Lbr. Co., 153 So. 164, 169 Miss. 327.

Subject to some qualifications, among them the cases where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons, the general rule is that, after the contractor has turned the work over and it has been accepted by the proprietor, the contractor incurs no further liability to third persons, by reason of the condition of the work; but the responsibility, if any, for maintaining or using it in its defective condition, is shifted to the proprietor.

1 Thompson on Negligence, sec. 686; Vicksburg v Holmes, 106 Miss. 234, 63 So. 454, 51 L.R.A. (N.S.) 469; Thornton v. Dow, 32 L.R.A. (N.S.) 986; Calan Construction Co. v. Clem, 41 A.L.R. S, sec. 26; Memphis Asphalt & Paving Co. v. Fleming, Ann. Cas., 1912B, 709; Young v. Smith & Kelly Co., 4 Ann. Cas. 226; 45 C. J. 884; Wharton on Negligence, sec. 439; Cunningham v. Gillespie, 241 Mass. 280, 135 N.E. 105; First Presbyterian Congregation v. Smith, 163 Pa. 56.1, 30 A. 279, 26 L.R.A. 504; Williams v. Edward...