Lyle v. RN Adams Construction Company

• Citation: 402 F.2d 323
• Decision Date: 02 October 1968
• Docket Number: No. 24999.,24999.
• Parties: Louis V. LYLE et ux., et al., Appellants, v. R. N. ADAMS CONSTRUCTION COMPANY et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

402 F.2d 323 (1968)

Louis V. LYLE et ux., et al., Appellants, v. R. N. ADAMS CONSTRUCTION COMPANY et al., Appellees.

No. 24999.

United States Court of Appeals Fifth Circuit.

October 2, 1968.

Warren Burnett, Odessa, Tex., for appellants.

Harold L. Sims, Eugene T. Edwards, El Paso, Tex., for appellees.

Before RIVES, GEWIN and THORNBERRY, Circuit Judges.

GEWIN, Circuit Judge:

This diversity suit was brought by appellants, Louis V. Lyle and others,¹ in the United States District Court for the Western District of Texas against appellees, R. N. Adams Construction Co. and Texas Bitulithic Co.,² to recover damages in the amount of $288,500 for personal injuries and $1,400 for property damage which appellants sustained in an automobile accident. Trial before a jury resulted in a verdict in favor of the defendants-appellees. Appellants' motion for a new trial was overruled by the district court and this appeal followed. We affirm.

The accident in question occurred on July 12, 1962, while appellants were en route from Las Cruces, New Mexico, to El Paso, Texas, on Interstate Highway 10. Helen Lyle was driving the vehicle. It had been raining and moisture described as mist or light rain was present. At 8:00 or 8:30 p. m. when Mrs. Lyle reached a point some two miles north of the scene of the accident, she began to be confronted with an array of warning signs. Some of the signs were as large as eight feet square and some were smaller. All of the signs were either painted with luminous paint or outlined with reflector beads, some being of a permanent nature and some being merely temporary. Generally, these signs apprised the motorist that the expressway way coming to an end; that the exit for Mesa Road was up ahead; that it was necessary to drive slow and carefully; that the speed limit was 45 m. p. h.; and that construction was in the vicinity.³

Helen Lyle admitted seeing these various signs. However, she testified that she did not interpret them to mean that I-10 ended abruptly or that the Mesa Road exit abutted on I-10 at an angle. Instead she thought that the highway would continue and that it would merely narrow somewhat, possibly into an undivided highway. Suddenly, according to her testimony, she saw a mound of dirt in the beam of her headlights and immediately jammed on the brakes. She tried to turn into the exit road but the car skidded 117 feet and crashed broadside against a guard rail with sufficient force to thrust the rail through the body of the car and at the same time knock loose two upright posts which supported it.

Just as the sign "Expressway Ends" stated, I-10 did in fact end. The segment of I-10 on which the Lyles were traveling was completed and approved by the Texas Highway Department some three years prior to the accident and a substantial permanent barrier, set in concrete, had been placed across the highway. This barrier was still in place on the night of the accident. Just north of the barrier a paved access road, Mesa Road exit, led diagonally to the right from I-10. South of the barrier there was no roadway of any kind, just raw land.

On July 3, 1962, the Texas Highway Department entered into a contract with appellees to construct another segment of the expressway extending several miles from the south end of the previously completed segment. The contract required the contractor to place and maintain standard barricades and warning signs, properly illuminated by flares or electric flashers, or both, during the hours of darkness.⁴ Although the contract was not to become effective until July 19, some work was done on the project on the 5th and 6th. However, this work was limited to an area quite distant from the scene of the accident. On the 10th of July, Adams began erecting signs as required by its contract to protect members of the motoring public. These signs were in addition to those which had served to warn the traveling public for some time prior to the accident in question. Specifically, the signs listed in footnote 3 which were put up by Adams were: "Construction, Drive Carefully"; "Observe Warnings"; "Slow"; and a sign bearing the names of Adams and the Texas Bitulithic Company.

At trial appellants sought to establish that the appellees failed to place a proper barricade across I-10 and had allowed a large amount of dirt to remain on the highway which constituted a hazard to motorists. Appellants further argued that appellees were negligent in that they failed to have in place sufficient and adequate warning signs and barricades properly illuminated by flares or flashers. Specifically, they submitted that appellees were negligent in failing to provide adequate signs apprising travelers that it was necessary to turn off I-10 at the point of the accident.

Appellees denied that they were negligent or in any way responsible for the accident. They contended that the signs and barricades which had been erected and maintained on I-10 were proper and adequate. Appellees strongly urged that the conduct and actions of Helen Lyle, the driver, were the sole and proximate cause of the accident, in that she had failed to keep a proper lookout, had disobeyed the warning signs, and had been driving excessively fast in the circumstances and over the speed limit at the point in question.

Much testimony was given on all of the above stated issues. At the close of all the evidence, appellees made motions for directed verdicts, which were denied by the court. The trial judge gave lengthy and thorough instructions to the jury concerning negligence, contributory negligence, and proximate cause. However, one sentence of the charge reads as follows:

Now you are further instructed that if you find from the evidence that the defendant had not taken possession of the place at which the accident complained of by the plaintiffs occurred prior to the date of the said accident on July the 12th, you will find for the defendants and against both of the plaintiffs.

Appellants objected to this portion of the charge. The objection recited that, since appellees had commenced work on the 5th of July and had undertaken to erect the signs and barricades in question under the terms of the contract prior to the accident, the question of the presence or absence of possession on the part of either defendant could not, under any circumstances, be determinative of liability.

On appeal appellants specify as error the court's instruction to the jury to find for the appellees should they find that appellees did not have possession of the place at which the accident occurred. Appellants submit that this instruction put before the jury an improper issue and that the judgment must, therefore, be reversed because there is no way of knowing whether it influenced the general verdict. After a careful review of the court's charge and the entire record, we conclude that no prejudicial error was committed.

During trial the thrust of appellants' argument was that the signs and barricades did not adequately forewarn the traveling public and that they were not properly illuminated. Appellees countered with arguments that the highway signs were sufficiently informative; that the signs were adequately illuminated; that Mrs. Lyle saw them; and that the accident occurred because of her own negligence in not heeding the warnings given. Each side directed its evidence to these respective positions, and the closing arguments of counsel considered at length the questions whether the signs were adequate and whether Mrs. Lyle was herself negligent.

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