Morgan-Hill Paving Co. v. Thomas

• Citation: 134 So. 480,223 Ala. 88
• Decision Date: 26 March 1931
• Docket Number: 6 Div. 500.
• Parties: MORGAN-HILL PAVING CO. v. THOMAS.
• Court: Supreme Court of Alabama

134 So. 480

223 Ala. 88

MORGAN-HILL PAVING CO. v. THOMAS.

6 Div. 500.

Supreme Court of Alabama

March 26, 1931

Rehearing Denied May 21, 1931.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages for personal injuries by Jewel Thomas against the Morgan-Hill Paving Company. From a judgment for plaintiff defendant appeals.

Reversed and remanded.

B. F Smith, of Birmingham, for appellant.

Smyer Smyer & Bainbridge, of Birmingham, and L. B. Rainey, of Gadsden, for appellee.

THOMAS J.

The verdict for defendant was finally on count 4. The issue was joined on a plea in short by consent, which included special defense, that there was no duty resting upon defendant to maintain, signal, etc., at the point in question, and that of contributory negligence of plaintiff.

The complaint contained, among other things, the material averments of fact, viz.:

"*** The defendant was engaged in the construction, paving or building of that certain public road in the County of Chilton, Alabama, commonly known as the Birmingham-Montgomery Highway, and *** said automobile ran into, upon or against a large hole or excavation in and upon the surface of said public highway, at a point, to-wit, three miles north of Clanton, Chilton County, Alabama, which said hole or excavation defendant had allowed to be and remain in or upon said public road and highway. *** said automobile in which the plaintiff was riding ran into, upon or against said hole or excavation and, as a proximate consequence thereof, said automobile was wrecked," etc.

"The defendant negligently caused or allowed said hole or excavation to be in and upon the said highway in the night time, without leaving and placing thereon and about the same lights or means of warning to persons driving and operating automobiles in the night time along, upon or over said public road or highway of the presence thereon and therein of said hole or excavation, wherefore the plaintiff sues."

A general affirmative charge requested by defendant for affirmative finding "for the defendant" as to certain counts is for such reason bad in form, and the trial court will not be put in error in refusing such charge; its "tendency is to mislead or confuse and require explanation" where there are two or more counts presenting different issues of fact. This does not apply to defendant's refused charge No. 12. Alabama Iron Co. v. Smith, 155 Ala. 287, 46 So. 475; Western Steel Car & Foundry Co. v. Cunningham, 158 Ala. 369, 48 So. 109; Goldstein v. Leake, 138 Ala. 573, 36 So. 458; Dorsey v. State, 134 Ala. 553, 33 So. 350; Louisville & Nashville Railroad Co. v. Sandlin, 125 Ala. 585, 28 So. 40; Mobile & Ohio R. R. Co. v. George, 94 Ala. 199, 10 So. 145; Wear v. Wear, 200 Ala. 345, 76 So. 111; Brotherhood of Locomotive F. & E. v. Milner, 193 Ala. 68, 69 So. 10; Polytinsky v. Johnston, 211 Ala. 99, 99 So. 839; Benton v. Benton, 214 Ala. 321, 107 So. 827; Roach v. Wright, 195 Ala. 333, 70 So. 271.

Assignments of error on charges 12 and 7 are argued jointly and in bulk, and both assignments of error have the same fate, if there can be no reversal as to either charge. City of Montgomery v. Moon, 208 Ala. 472, 94 So. 337; Alabama Co. v. Norwood, 211 Ala. 385, 100 So. 479; Bush v. Bumgardner, 212 Ala. 456, 102 So. 629; Malone v. Reynolds, 213 Ala. 681, 105 So. 891; Southern Railway Co. v. Cunningham, 152 Ala. 147, 44 So. 658.

The case went to the jury on count 4 only; the other counts being withdrawn by plaintiff. Therefore there was no defect of form or confusion as to the issues of fact (as argued by counsel) in refused charges 7 and 12; hence these requested charges by defendant will be considered.

Under count 4 the gravamen was the negligent failure to maintain the roadway without means of warnings at the point in question-negligently "caused or allowed said hole or excavation to be in and upon the said highway in the night time" without "means of warning." The rule of evidence that prevails here is that, if there is slight evidence or reasonable inference that may be drawn therefrom, general affirmative instructions should not be given. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135; Liverpool & London & Globe Ins. Co. v. McCree, 213 Ala. 534, 105 So. 901; American Railway Express Co. v. Henderson, 214 Ala. 268, 107 So. 746; McGahey v. Albritton, 214 Ala. 279, 107 So. 751.

The question recurs when the evidence is carefully considered, Was a jury question presented by the controverted facts that showed a duty on the part of the defendant to maintain and keep in safe condition for travel by the public that part of the public highway where the accident occurred and at the time the same occurred?

It was established in the cases of Morgan Hill Paving Co. v. Fonville, 218 Ala. 566, 119 So. 610; Id. (Ala. Sup.) 130 So. 807, and Wade v. Gray, 104 Miss. 151, 61 So. 168, 43 L. R. A. (N. S.) 1046, that a contractor engaged in the construction, maintenance, or repair of a public highway within the time and under the terms of his contract with the superior authority (here the state), and his negligence proximately causes injury to a traveler on such thoroughfare, he is liable in damages therefor; this is to say, a contract between the state and a contractor, requiring the latter to place and maintain necessary barricades, the required and sufficient warnings, signs, danger signals, and other reasonable precautions to protect the work and the traveling public, is the recognition or assertion of nonliability of the state for negligence, and that of recognition and assumption therefor on such contractor, for legal responsibility to travelers upon the highway in question, at the time, place, and under the circumstances, and within contract obligations. Such was the effect of the cases of Morgan-Hill Paving Co. v. Fonville and Wade v. Gray, supra.

The contract is in evidence, and its ambiguous provisions as to the work of paving being done at the time and place are interpreted by the parties. It places responsibility in case of damages "arising out of or on account of work done under this contract *** upon the contractor." Its scope was for (a) grading and bringing the surface to the lines shown on the approved plans "in accordance with the plans and specifications"; and (b) provides for specific requirements to put the road "in perfect condition for use," in "strict accordance with the plans and specifications," and to "leave the roadway and adjacent property in neat condition and free from rubbish," etc.; requires that the contractor "shall not deviate from the plans and specifications" without authority; provides for the observance of laws that obtain, and special precautions for "public convenience and safety," such as detours, barricades, warning signals, etc.; sets out the "authority and duties of inspectors," and provides that "the inspector will exercise such additional authority only, as may from time to time be delegated to him by the engineer"; provides for a final estimate and payment after thirty days and upon complete performance. The specific provisions for construction to be done were of "Project No. 100-B" from a point near Lomax to the Autauga county line, in conformity "with the provisions of the contract," notice of the contractors, and proposal, "and the plans and specifications prepared or approved by the State Highway Engineer (or the Assistant State Highway Engineer), the originals of which are on file in the office of the State Highway Engineer," and such plans and specifications are made a part thereof as if set out; that "the State agrees and promises to pay to the contractor for said work, when completed in accordance with the provisions of this contract, the price as set forth in the said proposal, *** payments to be made as provided in said specifications upon presentation of the proper certificates of the State Highway Commission or its representatives and upon the terms set forth in the said specifications and pursuant to the terms of this contract." It was further provided as follows: "It is understood by both parties to this contract, that the pavement shall not be laid on any embankments exceeding five feet in height, which have not been constructed six months or more prior to the placing of such pavement, unless permission is given by the Highway Commission itself or through the engineer in charge. In the event it shall become necessary under these clauses to skip parts of the roadway where banks are over five feet in height, and return later to such skipped section and lay pavement, there shall be no claim made against the State or approved by the State for any cost accruing by reason of such skipping of embankment sections and returning thereto."

It was further indicated that the contract contained provisions as follows:

"The first is Section 'C' on page 7 of the contract: (Reading)

"'To start the improvement at the part of the road designated by the engineer, and to conduct and complete the work in accordance with the plans and specifications as interpreted by the engineer. The unit or lump sum prices, or both, mentioned in the proposal shall cover the cost of all materials and labor.'

"Section 4, on page 7, under the heading of Alterations:

"'The engineer shall possess the right to make reasonable changes in the plans or character of the work, when in his judgment these may be desirable, but in case such changes should serve to increase or decrease the cost of the work to the contractor, a corresponding increase or decrease, to be agreed upon between the engineer and the contractor, will be made in the amount paid the contractor. In the event the engineer and the contractor cannot agree upon the compensation to be paid for such

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