Hughes v. Robert G. Lassiter & Co.

• Decision Date: 27 April 1927
• Docket Number: 286.
• Citation: 137 S.E. 806,193 N.C. 651
• Parties: HUGHES v. ROBERT G. LASSITER & CO.
• Court: North Carolina Supreme Court

137 S.E. 806

193 N.C. 651

HUGHES v. ROBERT G. LASSITER & CO.

No. 286.

Supreme Court of North Carolina

April 27, 1927

Appeal from Superior Court, Robeson County; Midyette, Judge.

Action by J. G. Hughes against Robert G. Lassiter & Co. Judgment for plaintiff, and defendant appeals. No error.

The facts in substance:

The defendant Robert G. Lassiter & Co. had a contract with the state highway commission to construct a hard-surfaced road between Aberdeen and Pinehurst, part of state highway system route 70. Plaintiff lived at Parkton, and on December 9, 1925, about daylight, started in a seven-passenger Buick automobile, sitting on the front seat with his nephew driving, an experienced automobile driver and two others, to go to a village the other side of Albemarle on business. They came by Raeford, and reached Aberdeen about 7 o'clock in the morning, crossed the railroad and bridge, and came to a crossroads--one leading to the left (No. 50) and one to the right (a continuance of No. 70), which they kept. They saw no notice by barricade detour signs, or otherwise that the road was closed to traffic. "At the forks of the road there was no barricade; we passed on through; nothing there to tell" that the road was closed to the public; saw no sign. They traveled this road some three miles the other side of Aberdeen, and drove up within 200 or 300 yards of a road machine in the road, concreting going on. They were directed--"a highway or construction man or employee instructed us to go the detour around the work. *** When I stopped the car, I received instructions to go back about 200 yards and detour. An employee of the force gave me that instruction. I didn't know that he was an employee. He drove up in a highway colored car they used; got out of the car. He saw us coming up, and we stopped, and he pointed back about 200 yards, and told us to go around that way. We turned around as we were instructed, crossed over the railroad, turned down a wagon road about half a mile, and crossed back on a crossing where the traffic was crossing. *** There were cars passing that way, and we followed the trail of the other cars." They came back about 5 o'clock in the evening the same route, and "on our return we undertook to cross the railroad and make the same detour, and, as our car rolled over the second track of the railroad, the wheel ruts were cut so deep in the sand, the wheels fell down and the bottom of the engine fell on the T-iron, and broke the engine all to pieces. *** Traffic during the day was so great over this crossing, the sand just cut deeper, I suppose, and holes between the cross-ties, no timbers or anything there to keep the wheels from falling down between the ends of the cross-ties at all, and when my car rolled over into the hole between the ends of the cross-ties, the car didn't clear itself and dropped on the engine." In going up on the crossing they could not observe that the car would sink down in the sand. As they came back in the afternoon where the injury to the car occurred, no instructions by signs whatever were given; only had what was given them that morning; saw no detour signs in Pinehurst as they came back. "I account for the damage to the car on account of the railroad crossing not being properly fixed. Apparently the crossing was a temporary one. Several cars passed while we were there waiting to be pulled into Aberdeen." There were numerous cars and trucks going along the road. Some six or eight passed after they were wrecked. There was no protection against the T-iron, no boards or anything at all on it. The automobile driver came up "easy on the track; he was as careful a driver as I ever saw." The construction job was started the latter part of May, 1925. The work was being done the entire balance of the year.

Plaintiff offered in evidence the contract between the state highway commission and the defendant Robert G. Lassiter & Co., particularly that part reading as follows:

"19. Detours--Public Convenience and Safety. The contractor shall at his own expense, build and maintain in good condition such detours, including crossings over pavements, as in the opinion of the engineer may be necessary to properly care for all local traffic during the construction so far as this project is concerned, and he shall place such explicit instructions, or signs, that the public may be properly informed as to such detours.

The state highway commission shall maintain all detours for strictly through traffic.

When a detour is used for both local and through traffic, the state highway commission and the contractor shall jointly build and maintain in good condition such detours, including crossings over pavements, and the entire expense for same shall be equally divided between the said State Highway Commission and the contractor.

Section 20. Barricades, Danger, and Detour Signs. The contractor shall provide, erect, maintain, illuminate, and finally remove all barricades, danger, and detour signs necessary to properly protect and direct traffic. Projects closed to traffic shall be protected by suitable barricades and signs, as shown on the sheet of standards. All barricades and signs, including detour signs, shall be illuminated at night. The contractor will be held responsible for all damage to the project due to failure of the signs and barricades to properly protect the work from traffic, pedestrians, animals, and from all other sources, and whenever evidence of any such traffic is found upon the unaccepted work the engineer will order that the work, if in his opinion it is damaged, be immediately removed and replaced by the contractor without cost to the state highway commission."

Defendants denied the material allegations of the plaintiff; denied it was a detour road; and alleged that it was for the teams and used for construction purposes; that suitable detours by the most practical routes were provided; that signs, etc., were put up to properly inform the public. That plaintiff was guilty of contributory negligence.

A witness for defendants testified in part:

"Where the bunch of teams went along this place you couldn't call it a road; it was too bad. There was no detour road which left a point about 200 yards from where the work was being done and went into the woods, crossed the railroad, and came back into the highway after you passed the place where the work was being done. There was no road there supposed to be used by the public. We didn't maintain a road there. We didn't mean for it to be there. There were tracks there, and we went through. I don't figure very many cars went through there. I can't say exactly how many. I could not give any idea how many. There were some. If I could give you the right idea, I would. There were some cars went through there. They didn't have any business going through there."

That at Aberdeen, coming from Raeford, there was a small detour sign 3 or 4 feet square on a telephone pole in the fork of that road showing route 50 out to Raleigh, "and then right down in where you hit that fork after you cross the bridge there was a big detour sign, 6 feet square. That fork was where one road goes to Pinehurst on route 70, and the other road goes to Raleigh. Fork of the road right after crossing the bridge, and there was a detour sign sitting in that fork; that is, about 100 yards from where it is contended the plaintiff turned out on this road. This big detour sign was in Aberdeen; one was in Aberdeen, and right after crossing the bridge from Aberdeen. That is right about the limit. That is right at the fork of the road. There were big letters on that detour sign right up above. First thing said 'Danger, road closed, under construction.' The upper part of it was in red. Then there was a black line pointing the way you detour. The arrow always points the way they want you to detour. Said something about under construction. The state highway commission put that sign there. It was right about 3 miles from the sign to the point where the car was wrecked. There were two signs in Pinehurst; one as you come in where the old depot was moved from. So there was one in the fork there and then on down at Sandhill fair ground there was another road fork and detour sign there showing you to come by way of Southern Pines." Where the car was wrecked, "it was not maintained at all as any sort of road. It was just made there; never maintained. That is the road our teams used to go in and out; never maintained any detour like that at all. The man that was directing Mr. Hughes through there was not any of our outfit; wasn't any of our outfit there. While we were working there, the state highway commission had inspectors on the job all the time." Another witness testified: "The state highway commission put up the detour signs absolutely for through traffic detour."

Varsar, Lawrence, Proctor & McIntyre, of Lumberton, and Parham & Lassiter, of Oxford, for appellant.

Dickson McLean, H. E. Stacy and C. W. Pridgen, Jr., all of Lumberton, for appellee.

CLARKSON J.

This is an action for actionable negligence brought by plaintiff against the defendants, for damages to a Buick seven-passenger automobile. The usual issues were submitted to a jury and found in favor of plaintiff, and damages awarded.

The only question involved in this appeal is whether the court below committed error in refusing to grant the defendant's motion for judgment as in case of...