Nichols v. Craven

• Decision Date: 02 November 1953
• Docket Number: No. 16791,16791
• Citation: 78 S.E.2d 376,224 S.C. 244
• Court: South Carolina Supreme Court
• Parties: NICHOLS v. CRAVEN et al.

Page 376

78 S.E.2d 376

224 S.C. 244

NICHOLS v. CRAVEN et al.

No. 16791.

Supreme Court of South Carolina.

Nov. 2, 1953.

Thomas & Lumpkin, Columbia, and Bridges & Bridges, Florence, for appellant.

Willcox, Hardee, Houck & Palmer, Florence, for appellant-respondent.

Royall & Wright, Florence, John D. Nock, Cheraw, for respondents.

TAYLOR, Justice.

This action was brought in the Court of Common Pleas for Florence County by George S. Nichols against McMeekin Construction Company and Standard Accident Insurance Company of Detroit, Michigan, and E. D. Craven, for injuries and property damages sustained in a collision between an automobile driven by him and one driven by Craven on U. S. Highway No. 52, near Lynches River between Florence and Lake City, South Carolina, on June 26, 1950.

Since Nichols is in the position of being both appellant and respondent, the parties will be referred to as plaintiff and defendants.

The cause of action against McMeekin and Standard Accident was based upon alleged negligence, recklessness, willfulness and wantonness of McMeekin Construction Company (Standard Accident Insurance Company of Detroit, Michigan, being its surety for the faithful performance of its contract with the South Carolina State Highway Department), for alleged failure to provide, erect and maintain suitable barricades and sufficient lights, signals, or signs directing traffic approaching and at a point on said highway where it had been constructing a new bridge over Lynches River, and approaches thereto. It was alleged that the bridge and approaches for a distance of approximately a quarter of a mile are practically parallel with the old road and bridge, and about one hundred feet to the west thereof; that the new project joined the old highway north and south of the river, and that on or about the date of the accident the new bridge and approaches thereto had been practically completed; that barricades should have been placed and maintained where the new road entered the old highway so as to direct traffic over the new and close traffic over the old; that Nichols, on the date alleged, was driving his automobile in a northerly direction on the highway, and, as he approached the new road south of the river, the old road was barricaded and closed, and he was required to travel upon the new road and over the new bridge; that as he continued across the new bridge on the right hand side of the newly constructed northern approach thereto, Craven, driving an automobile in a southerly direction on the highway collided with plaintiff's automobile at the point where the old road and the new road came together; that there was no barricade, notice, warning or sign of any kind on the old highway north of the bridge directing traffic over the new part of the highway at the point of collision of the two vehicles or in close proximity thereto; that it was the duty of McMeekin Construction Company, in connection with the construction of said bridge and approaches thereto to provide, erect and maintain suitable barricades, lights, signals, signs, etc., and a watchman so as to properly direct traffic over the newly constructed part of the highway, and that its failure, together with the negligence of the said Craven in the operation of his automobile caused Nichols to receive severe injuries. The defendant, Craven, answered and set up a denial of negligence on his part, a plea of contributory negligence, a counterclaim against the plaintiff, Nichols, and a cross action against the defendants, McMeekin and its surety. By way of reply to the counterclaim, plaintiff, Nichols, denied negligence.

Defendants, McMeekin and its surety, Standard Accident, filed answers in the nature of a general denial; alleged that McMeekin had completed construction of the new project, and earth graded approaches thereto, as required by its contract with the Highway Department, and had surrendered control of same to the Highway Department prior to the accident; that the Highway Department began surface treating the approaches on June 8, 1950, and completed same on July 12, 1950; therefore, the approaches and bridge were in the complete custody and control of the Highway Department during said period. There were also defenses of contributory negligence, recklessness, wilfulness and wantonness on the part of Nichols, and allegations to the effect that the collision was due to the sole negligence, recklessness, wilfulness and wantonness of Craven in the operation of his automobile.

The case came on to be heard before Honorable G. Badger Baker, the presiding Judge, and a jury on May 15, 16 and 17, 1952. At the conclusion of the testimony, the defendants, McMeekin Construction Company and Standard Accident Insurance Company, moved for the direction of a verdict in their favor, which motion was granted.

Following the presiding Judge's charge, the case was submitted to the jury and a verdict returned in favor of the plaintiff in the sum of $2,500 actual damages against the defendant, E. D. Craven.

Plaintiff made timely motion for a new trial against all defendants, which was marked heard and argument was presented thereon at a subsequent date. Plaintiff's motion for a new trial against the defendant, E. D. Craven, was based upon the ground that the verdict of the jury was inadequate. Plaintiff's motion for a new trial against the defendants, McMeekin Construction Company and Standard Accident Insurance Company, questioned the ruling of the presiding Judge in directing the verdict in favor of these defendants. Argument was heard on these motions and the matter taken under advisement by the presiding Judge who thereafter, on August 27, 1952, issued his order granting the motion for a new trial as to the defendant, Craven, but denying the motion for a new trial as to the defendants, McMeekin Construction Company and Standard Accident Insurance Company.

Notice of appeal was duly given by plaintiff from the direction of verdict in favor of McMeekin Construction Company and its surety and the defendant, E. D. Craven, appeals from the order granting plaintiff a new trial as to him.

Plaintiff, Nichols, by appropriate exceptions contends: First, that the McMeekin Construction Company was negligent in failing to maintain barricades, signs, lights, signals, watchmen, etc., particularly at the northern junction of the new road with the old, thereby failing to take the necessary precautions for the protection of the traveling public; and, second, that the McMeekin Construction Company was responsible under its contract with the Highway Department for the safety of the traveling public until the project was formally accepted by the Highway Department.

Section 7.07 of the Standard Specifications provides:

'Barricades, Danger Warning and Detour Signs. The contractor shall provide, erect, maintain and finally remove all necessary barricades, suitable and sufficient red lights, danger signals and signs; provide a sufficient number of watchmen; and take all necessary precautions for the protection of the work and safety of the public. Highways closed to traffic shall be protected by the effective painted barricades of a type approved by the engineer, on which shall be placed acceptable warning and detour signs. The contractor shall provide and maintain acceptable warning and detour signs at all closures and intersections, and along detour routes for which he is responsible, directing the traffic around the closed portion or portions of the highway so that the temporary detour route or routes shall be indicated clearly throughout its or their entire length. All barricades and obstructions shall be illuminated at night and all lights shall be kept burning from sunset until sunrise.'

The contract in question provided that the McMeekin Construction Company should construct a new bridge over the Lynches River in Florence County, South Carolina, on U. S. Highway 52 and the approaches thereto but such contract did not include the paving or surface treating of said approaches as that was to be done by the Highway Department itself. Also, included in the contract was the construction of several smaller bridges south of the main bridge but they are not important in the consideration of the questions in this case.

The usual performance bond with the Standard Accident Insurance Company as surety was given by the McMeekin Construction Company. The approaches to the new bridge from the south to the point where it joins U. S. Highway 52 are a relatively short distance with a greater length along the north side and almost parallel with the old bridge for an overall distance of a quarter of a mile.

On May 20, 1950, the diary of the project engineer of the Highway Department showed that the project was 'opened to traffic.' On May 29, 1950, the bridge engineer, district engineer, and assistant engineer having made an inspection of the work, the project engineer wrote the McMeekin Construction Company setting forth eleven minor items which related to the bridge that remained to be done before the final acceptance. On June 1, 1950, the McMeekin Construction Company had completed this list of items and the project engineer, Mr. P. E. Bradham, wrote on the original of the aforesaid letter 'Completed, 6-1-50' and signed his name. He also wrote in his diary on June 1, 1950, that the 'Contractor finished all work and all clean up done.' But it was not until August 3, 1950, that the Highway Department wrote the McMeekin Construction Company its formal acceptance of the project as of August 1, 1950.

After the June 1, 1950, inspection the Highway Department commenced preparations for the surface treating of the approaches to the new bridge, and the barricades which had been left by the contractor to divert traffic from the newly constructed approaches and bridge were relocated by the Highway Department so as to divert traffic from the old road to that portion of ...