Morgan Hill Paving Co. v. Fonville

• Decision Date: 16 October 1930
• Docket Number: 6 Div. 439.
• Citation: 222 Ala. 120,130 So. 807
• Parties: MORGAN HILL PAVING CO. v. FONVILLE.
• Court: Alabama Supreme Court

130 So. 807

222 Ala. 120

MORGAN HILL PAVING CO. v. FONVILLE.

6 Div. 439.

Supreme Court of Alabama

October 16, 1930

Rehearing Denied Nov. 28, 1930.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for damages for personal injuries by W. D. Fonville against the Morgan Hill Paving Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Contractor maintaining barricade, where automobile overturned in attempting to pass around it, could, on cross-examination of witness, in view of issues developed, show how far barricade could be seen at night.

The following charges were refused to defendant:

"38. The Court charges you, gentlemen of the jury, that if you are reasonably satisfied from all of the evidence in this case that said detour sign was erected and maintained and placed, and that lights and other danger signals were placed thereon as directed by the State Highway Department of the State of Alabama, at the time plaintiff sustained his injuries, then the plaintiff is not entitled to recover."

"E. If, after you retire to the jury room to reach your verdict, any one of you asserts a fact material to this case and asserts that he has personal knowledge of that fact, you will thereupon return into this court room and report the occurrence to me."

"C. I charge you, gentlemen of the jury, that although you may not be reasonably satisfied from the evidence that there was a burning light or a reflector on the barricade described in the evidence when the automobile of witness Dye approached said barricade at the time plaintiff was injured, you cannot find that the failure to have such burning light or reflector on said barricade at said time was a proximate cause of plaintiff's injuries unless you are reasonably satisfied that on the occasion in question a reasonably prudent person operating said automobile at a lawful and proper speed and in a proper manner would not have been able to have seen said barricade in time to have avoided an accident such as that resulting in plaintiff's injuries."

"2. The court charges you, gentlemen of the jury, that if you are reasonably satisfied from all of the evidence in this case that at and prior to the time of the accident, the car was being driven by George R. Dye, who at said time was intoxicated to such an extent that he could not manage a car as a reasonably prudent and careful man could have managed the same under the same circumstances and that the plaintiff at said time knew that the said Dye was so intoxicated and did not protest or object at the said Dye driving said car and did not attempt to get out of said car, and if you are further reasonably satisfied from all of the evidence in this case that such acts or failure to act on the part of the plaintiff contributed to his alleged injuries and damages, then the plaintiff would not be entitled to recover."

"7. The court charges you, gentlemen of the jury, that if you are reasonably satisfied from all of the evidence in this case that at and prior to the time of the accident, the car in which the plaintiff was riding was being driven by George R. Dye, at a reckless and dangerous rate of speed and that the said Dye was intoxicated and that the plaintiff failed to protest or object to the rate of speed at which said automobile was being driven and did not attempt to get out of said car, and if you are further satisfied from all the evidence that such acts or failure to act on the part of the plaintiff proximately contributed to his alleged injuries or damages, your verdict should be for the defendant."

"11. The court charges you, gentlemen of the jury, that if you are reasonably satisfied from all of the evidence in this case that the driver, George R. Dye, was intoxicated and became so intoxicated during the trip from Birmingham to the point where the accident occurred and that the plaintiff knew that the said Dye was intoxicated a sufficient length of time before the accident to protest or object to the said Dye driving the automobile and to attempt to get out of the automobile, and if you are further reasonably satisfied from all of the evidence in the case that the plaintiff did not protest or object to the said Dye driving said automobile and did not attempt to get out of said automobile, and if you are further satisfied from all of the evidence in this case that such acts or failure to act on the part of the plaintiff proximately contributed to his alleged injuries and damages, then the plaintiff is not entitled to recover, and your verdict should be for the defendant."

"34. The court charges you, gentlemen of the jury, that if you are reasonably satisfied from all of the evidence in this case that the plaintiff and Geo. R. Dye were engaged in a joint venture at the time plaintiff received his alleged injuries and that the plaintiff sustained his alleged injuries as the direct and proximate result of negligence of George R. Dye, then your verdict should be for the defendant."

"35. The court charges you, gentlemen of the jury, that if you are reasonably satisfied from all of the evidence in this case that at the time plaintiff sustained his alleged injuries he was going on a hunting trip with the driver of the car, Mr. George R. Dye, and a Mr. Roberts and that at the invitation of the plaintiff, the said Dye and Roberts were going to a place selected by the plaintiff and to which the plaintiff invited the said Dye and Roberts, and if you are further reasonably satisfied from all of the evidence in this case that the plaintiff and Mr. Dye and Mr. Roberts agreed among themselves to divide the expenses of the trip and that they were on a joint venture at the time plaintiff sustained his alleged injuries, and if you are further satisfied from all of the evidence in this case that plaintiff sustained his alleged injuries as the proximate consequence of the negligence of the (said) George R. Dye, then your verdict should be for the defendant."

The question, the sustaining of objection to which is made the basis of assignment 58, is as follows: "I will ask you if, as a matter of fact, when you were passing Mr. Stoneseifert's house-or did you pay any attention to it-in front of Mr. Stoneseifert's house if you couldn't see the detour sign?"

Count 4 of the complaint, on which the trial resulting in the judgment from which this appeal is taken was had, will be found in the statement of the reporter on the former appeal. Morgan Hill Paving Company v. Fonville, 218 Ala. 566, 119 So. 610.

It appears, without dispute in the evidence, that the defendant at the time of plaintiff's injury was engaged in paving a part of the Montgomery highway near Clanton in Chilton county, under a contract with the state highway department. That at a point about three miles south of Clanton a "barricade and detour sign" was placed and maintained for the purpose of directing traffic moving south to the detour, which turned sharply to the west, the barricade consisting of a wooden "horse" made of 2x6 scantlings, standing approximately four feet high and from twelve to eighteen feet long, on which was hung a signboard seven feet long and three feet and nine inches wide, on which was bolted an arrow pointing to the detour with the word "detour" in large red letters thereon. The sign board proper had thereon "State Highway Department." (Four-inch letters), "Road Closed Under Construction" (6-inch letters), the lettering being four inches apart and covering a space of thirty-six inches in width.

The highway approaching the detour from the north had been paved, the pavement extending beyond the point of the detour from one and a half to two miles.

The barricade was so placed on the paved highway that persons living south of the barricade on the highway could pass around the east end of the barricade; but the evidence was in dispute as to whether one could pass on the pavement or was compelled to go on to the shoulder, which was of sandy soil, and soft.

The plaintiff's evidence tended to show that the barricade extended to near the edge of the concrete slab, and that, in the case of a car headed south, to pass around the barricade the wheels of the car to the east would leave the slab and pass on to the unfinished soft shoulder of the highway, about four feet in width. Immediately to the east of the shoulder was a ditch some two or three feet deep, and immediately east of the ditch an embankment.

The defendant's evidence tended to show that a space of eight feet on the slab was left, and this was sufficient to allow a car to pass without leaving the pavement.

After passing a curve in the highway, the evidence being in dispute here, from six hundred to fifteen hundred feet north of the barricade, the highway was straight to the barricade and for some distance south thereof.

The detour left the highway from ten to twenty feet north of the barricade at a sharp decline.

On the night of December 17, 1925, one George Dye, driving his automobile, a high-powered Lincoln, along the highway, with plaintiff and another as guests, according to his evidence and that of the plaintiff, discovered this barricade when within fifty or sixty feet of it. The car was then moving from twenty-five to forty miles per hour, and, in an effort to pass around the barricade to the left, ran upon the soft shoulder of the highway, striking the ditch and causing the car to turn over and wreck, resulting in serious and permanent injuries to the plaintiff.

As to whether or not red lights and a reflector were maintained on this barricade, the evidence was in conflict. The evidence was also in conflict as to the character of the night whether dark or moonlight, and as to the distance the barricade could be...