Muskogee Bridge Co., Inc. v. Stansell, 92-441

• Decision Date: 16 November 1992
• Docket Number: No. 92-441,92-441
• Citation: 311 Ark. 113,842 S.W.2d 15
• Parties: MUSKOGEE BRIDGE COMPANY, INC., Appellant, v. Cheryl A. STANSELL and Samantha Stansell, By Her Next Friend, Cheryl A. Stansell, and Patricia Sunday Lawson, Appellees.
• Court: Arkansas Supreme Court

Page 15

842 S.W.2d 15

311 Ark. 113

MUSKOGEE BRIDGE COMPANY, INC., Appellant, v. Cheryl A. STANSELL and Samantha Stansell, By Her Next Friend, Cheryl A. Stansell, and Patricia Sunday Lawson, Appellees.

No. 92-441.

Supreme Court of Arkansas.

Nov. 16, 1992.

Walter B. Cox, Tim E. Howell, Fayetteville, for appellant.

Bobby Lee Odum, J. Timothy Smith, Fayetteville, Brian D. Wood, Springdale, James G. Lingle, Rogers, for appellees.

BROWN, Justice.

The appellant, Muskogee Bridge Company, Inc., raises five points for reversal in this appeal from a jury verdict finding it eighty percent at fault for an automobile accident which resulted in the death of Jim Lawson, husband of appellee Patricia Lawson, and injury to Patricia Lawson's son, Justin Lawson, and to appellees Samantha and Cheryl A. Stansell. The points raised are without merit, and we affirm.

On the morning of May 11, 1985, Jim Lawson of Springdale prepared to go to work at George's egg plant north of town and discovered that his truck would not start. He woke his wife, Patricia Lawson, and asked her to drive him to work. She agreed, placed the couple's two-year-old son, Justin, in a child safety seat in the right-rear passenger seat of her car, and they left for the plant. Jim Lawson was expected to report for work at 7:00 a.m.

Prior to this time, Muskogee Bridge, an Oklahoma corporation, contracted with the Arkansas State Highway Commission to embark on a bridge construction project involving two bridges on U.S. Highway 71 just north of Springdale. The work was to be done in accordance with Highway Commission plans and specifications and under supervision of Highway Department personnel. A state-approved subcontractor, McClinton-Anchor Company, was to do the paving and asphalt work, also under Highway Department supervision.

At approximately 6:45 a.m., while still in Springdale, Patricia Lawson was heading north toward Rogers on U.S. Highway 71-Business. She approached the bridge construction area where Muskogee Bridge had closed the outside lanes on the bridge and permitted traffic only in the two inside lanes. Pylon barriers narrowed the road to a single lane leading north to the bridge. No employee of Muskogee Bridge was present at the time to direct traffic. No flashing arrow board or dip or bump signs were in place to warn drivers of danger.

Patricia Lawson, who was unfamiliar with the route, was exceeding the speed limit when she approached the bridge construction. The road surface for the bridge was higher due to resurfacing. This caused a bump as you entered the construction area and a drop-off after you crossed the bridge on the north side. Estimates of her speed ranged from forty to sixty-five miles an hour in a thirty-mile-per-hour zone at the construction site. At some point in the vicinity of the bridge construction, she lost control of the vehicle. Her skid and slide marks on the pavement began fifty to sixty feet from the end of the bridge construction according to Officer Kenneth Watson of the Springdale Police Department. Her car then jumped the median, crossed into the southbound lane, and crashed into an automobile driven by Cheryl Stansell and occupied by her daughter, Samantha Stansell. The impact destroyed the cars, killed Jim Lawson, and injured the appellees and their children.

Cheryl and Samantha Stansell filed a complaint in the Washington County Circuit Court, charging negligence on the part of both Muskogee Bridge and Patricia Lawson. Among the allegations asserted against Muskogee Bridge were failure to provide adequate warnings and "[l]eaving an abrupt dip or bump in the roadway which created an unreasonably dangerous condition." Patricia Lawson counterclaimed against Cheryl Stansell and cross-complained against Muskogee Bridge, advancing the same allegations against it that the Stansells made in their original complaint.

The case was tried before a jury over two days. The jury returned a verdict finding Muskogee Bridge eighty percent at fault in causing the accident and appellee Patricia Lawson twenty percent at fault. The jury awarded Cheryl Stansell, Samantha Stansell, and Justin Lawson the amounts of $25,000, $500, and $750,000, respectively.

I. SUBSTANTIAL EVIDENCE

Muskogee Bridge first contends that the jury's verdict in favor of the appellees was founded solely upon sheer speculation and sympathy rather than upon substantial evidence. Substantial evidence is defined as that which is of sufficient force and character to compel a conclusion one way or another; it must force or induce the mind to pass beyond suspicion or conjecture. Derrick v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991); Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). We have held that we must affirm if there is substantial evidence to support the judgment below. Derrick v. Mexico Chiquito, Inc., supra; Handy Dan Improvement Center, Inc. v. Peters, 286 Ark. 102, 689 S.W.2d 551 (1985).

In testing whether the evidence is substantial on appellate review, we need only consider the evidence on behalf of the appellee and that part of the evidence that is most favorable to the appellee. Derrick v. Mexico Chiquito, Inc., supra; Love v. H.F. Construction Co., 261 Ark. 831, 552 S.W.2d 15 (1977). The appellees asserted these instances of negligence: (1) the creation of a funnelling effect into the bridge with the reduction of four lanes to two lanes in a high-traffic, no-bypass area; (2) the creation of a "speed bump" at the south end of the bridge and a drop-off of several inches at the north end which caused Patricia Lawson to lose control; (3) the decision of Muskogee Bridge not to expend funds to pay for the installation of flashing arrow boards or additional warning signs; (4) the failure of Muskogee Bridge to comply with its contractual obligation to take "needed actions" to ensure the "safety of the public."

The following evidence presented at trial supports a finding of negligence on the part of Muskogee Bridge:

Mike Webb, secretary-treasurer of Muskogee Bridge Company, conceded that "[w]e were responsible for traffic signs, yes, sir." He acknowledged that there were no signs in place indicating either a "bump" or a "dip."

Leon Brewer of the Arkansas Highway Department testified that in a letter he wrote denying Muskogee Bridge's request for a flashing arrow panel he never said that such signs were not necessary but merely that they were not required by the Highway Department's standard drawings. He insisted that the drop-off on the north end of the bridge could only have been an inch-and-a-half according to project specifications, but he agreed that if something there created the effect of a speed bump then something "was not right."

Don Hooten, Muskogee Bridge's project supervisor, admitted that the drop-off, which he contended was an inch-and-a-half as set forth in the project specifications, had not been measured. He also stated that flashing signs are typically used in "high traffic areas" and conceded that no "bump" or "dip" sign had been set up.

Officer Clyde Martin of the Springdale Police Department testified that he patrolled the area on a regular basis and estimated the drop-off on the north end of the bridge to be "anywhere from four to eight inches." He said that the drop-off was there both before and after the accident.

Officer Herschel D. Hardin of the Springdale Police Department stated that he had been on the bridge as many as a dozen times or more per eight-hour shift during the period of construction. He said regarding the drop-off: "It reminded me of a speed bump, the severity of the height of it which could cause a car to lose control going over it and maybe not being too familiar with it." He declared the condition to be "dangerous" because of the ramp on either side of the bridge. He estimated the drop-off at four to six inches.

Officer Kenneth Watson of the Springdale Police Department, who also patrolled the area with considerable frequency, recalled that "[I]t was a pretty good rise onto the bridge and then again going off of the bridge in either direction." He described the sensation of going over the ramp as "more like a speed bump than most anything else" and a "pretty good jump." On one occasion, when he was in pursuit of a suspect in a shooting incident at a speed of more than one hundred miles an hour, his vehicle became "airborne" after crossing the bridge.

Teresa Jo Nagles, a teacher and volunteer fire fighter who arrived on the scene after being summoned by beeper, said that the bridge construction area was "pretty bumpy." She also remarked that "if I hit it hard enough going faster than thirty miles an hour it would jar my car."

Loretta Feagin, an eyewitness to the accident, testified that she observed Patricia Lawson's car in the narrowed, two-lane area "weaving back and forth from one side to the other, back and forth. She was fighting it. She couldn't hold it straight." Loretta Feagin estimated Patricia Lawson's speed at forty miles an hour.

Muskogee Bridge's contract with the Highway Commission provided in a section titled "Safety; Accident Prevention" that:

The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions, on his own responsibility, or as the State Highway Department contracting officer may determine, reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract.

In a special provision entitled "Traffic Control Devices for Construction Zones," the contract stated:

It will be the responsibility of the contractor to furnish all other signs, barricades, channelization devices or temporary traffic control other than those covered above. These types of traffic control devices are those required for temporary hazard protection, i.e., ... drop...