Morgan-Hill Paving Co. v. Fonville

• Decision Date: 24 March 1932
• Docket Number: 6 Div. 936.
• Citation: 140 So. 575,224 Ala. 383
• Parties: MORGAN-HILL PAVING CO. v. FONVILLE.
• Court: Alabama Supreme Court

140 So. 575

224 Ala. 383

MORGAN-HILL PAVING CO. v. FONVILLE.

6 Div. 936.

Supreme Court of Alabama

March 24, 1932

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

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

Affirmed.

Coleman Coleman, Spain & Stewart, of Birmingham, for appellant.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellee.

BROWN J.

This is the third appeal in this case. On the first two trials the case was submitted to the jury on the fourth count of the complaint and the defendant's pleas of contributory negligence, each resulting in a verdict and judgment for the plaintiff, and on the two former appeals the substantive law of the case, as related to the issues framed by the pleadings as they then stood, was declared. Morgan Hill Paving Co. v Fonville, 218 Ala. 566, 119 So. 610; Id. (second appeal) 222 Ala. 120, 130 So. 807.

On the last trial the plaintiff amended his complaint by adding count A, declaring as for a breach of duty growing out of the contract entered into by the state highway department and the defendant in respect to paving the highway, and the case proceeded to trial on original count 4 and count A, and defendant's plea of the general issue and several pleas of contributory negligence, some of which were interposed for the first time on the last trial, after plaintiff had so amended his complaint.

The facts as developed on the trial were substantially the same as on the former trials. At the conclusion of the evidence, the plaintiff amended his complaint by withdrawing Count A, and amended Count 4 by striking therefrom the words "erected and" where they occurred in said count in connection with the averment that "the defendant [erected and] maintained a barricade, plank or other obstruction across or partly across said highway."

The first contention of the appellant is that the evidence is without dispute that the barricade was placed on the road by the state highway department, and not by the defendant, and in excerpt from the oral charge of the court, to which exception was reserved, the basis for the 177th assignment of error, the court ignored the effect of this amendment, in the utterance: "There is evidence of a contract between the defendant and the State Highway Department, and you can look to that contract in determining as to the right of the defendant on the road at that point in regard to the erection of that barricade. But I will say to you, gentlemen, that the breach of duty charged in the complaint against this defendant is limited to the breach of duty charged in the complaint, that is, in failing to have the proper warning signs on the barricade, and you cannot look to this contract, gentlemen, to increase or enlarge the duty which the defendant owed to the plaintiff using that public road." This contention is clearly without merit, not only because the evidence was in dispute as to whether the defendant erected the barricade or detour sign-the defendant in its answers to the interrogatories filed under the statute having stated that it placed said barricade or detour sign on the highway-but also for the reason that the instruction limited the inquiry to the maintenance of proper warning signs on the barricade. The effect of the evidence on the point as to who erected the barricade was pointed out on the former appeal. Morgan Hill Paving Co. v. Fonville, 222 Ala. 120, 130 So. 807.

Whether the apparatus maintained at the place of the inquiry be called a detour sign or what not, it was, under the undisputed evidence in the case, placed on the highway to obstruct the general traffic beyond the point where it was maintained, and was in this sense a barricade, and this instruction was not subject to the criticism that it was unwarrantedly assumed that the apparatus was a barricade. Nor is the instruction in conflict with given charge 15.

The next insistence is that the court erred in instructing the jury in the oral charge, to which exception was reserved and made the basis of the 179th assignment of error: "If you find from the evidence that they (defendant, its agents or servants) were negligent in that regard, that they did not use the care which a reasonably prudent person would have used in regard to placing lights on this detour sign, then they would be guilty of negligence."

The contention is that this instruction is omissive in not going further and requiring the defendant to exercise "a degree of skill as is usually exercised by persons of ordinary prudence who are engaged in such business or accustomed to doing work of that character, especially where the lack of such skill would be highly dangerous to the persons or lives of others." If this criticism is well founded, the instruction given is more favorable to the defendant than if it had been stated as appellant contends. The rule contended for is applicable to skilled professionals and artisans, specially trained in the profession or business in which they are engaged, as to which the law exacts a higher duty than as to ordinary affairs. Travis v. L. & N. R. R. Co., 183 Ala. 426, 62 So. 851, cited by appellant, illustrates the application of this rule. The matter of placing a detour sign or a barricade on a public highway to warn the ordinary traveler on a highway is one of common sense and sound judgment, which all reasonably prudent men are presumed to possess. The instruction was in accordance with this view, and is not in conflict with the opinion on second appeal. Morgan Hill Paving Co. v. Fonville, 222 Ala. 120, 130 So. 807; 45 C.J. 694.

The appellant next insists that it was entitled to the affirmative charge because of failure of the plaintiff to prove that the defendant maintained the detour sign or barricade on the highway. This question was fully dealt with on the former appeals, and we find nothing in the record to warrant further treatment. As before stated, there was evidence going to show that the sign was not only placed on the highway, but was maintained there, and that defendant undertook to keep it lighted.

Refused...