Reynolds v. Manley

• Decision Date: 15 March 1954
• Docket Number: No. 5-176,5-176
• Citation: 223 Ark. 314,265 S.W.2d 714
• Parties: REYNOLDS et al. v. MANLEY et al.
• Court: Arkansas Supreme Court

Page 714

265 S.W.2d 714

223 Ark. 314

REYNOLDS et al. v. MANLEY et al.

No. 5-176.

Supreme Court of Arkansas.

March 15, 1954.

Mehaffy, Smith & Williams, Pat Mehaffy, John T. Williams and R. Ben Allen, Little Rock, for appellants.

Bates, Poe & Bates, Waldron, for appellees.

WARD, Justice.

This is an appeal from a judgment against appellants based on injuries received in an automobile collision and in favor of John Manley, John Manley as guardian of his three children, and John Manley as administrator of the estate of his wife. The principal ground urged by appellants for a reversal is that there is no substantial evidence to support the verdict of the jury and the judgment of the trial court.

On October 27, 1951 John Manley, accompanied by his wife, Lucy, and their three minor children, was driving south on highway No. 71 toward Texarkana. As he was approaching the south end of Index bridge a large trailer truck going north came to a halt supposedly for the purpose of allowing Manley's car to clear the bridge. At this time a pickup truck driven by J. P. Harrison, one of the defendants in the trial court, had come up behind the trailer truck. Because of this situation, it is alleged, Manley was forced to pull his car to the right off the 18 foot concrete highway and onto a concrete extension slab which extended from the bridge south along the west side of the main highway for a distance of approximately 200 feet, and when he came to the end of the extension slab, it is contended, the right wheel of his car went off the end of the extension slab and into a hole or rut. This, it is contended, caused him to lose control of his car and caused his car to swerve to the left into the direct path of a car being driven north at the time by one Perry Lay. As a result of the collision Manley and his three children were injured and his wife, Lucy, died a few days later. The extent of the injuries and the amount of recovery are matters that need not be discussed in this opinion.

The concrete extension slab mentioned above is approximately 3 feet wide at the bridge and the south end is approximately 14 inches wide. This extension slab was constructed by appellants pursuant to a contract with the State Highway Department. The U. S. Bureau of Public Roads participated with the State in the construction project. Incidental to the contract it was a part of appellants' job to backfill on the west side and at the south end of the extension slab and also repair or build the shoulder on the west side of the concrete road and immediately south of the end of the extension slab for a distance of approximately 34 feet. The material to be used in backfilling and in building the shoulder is one of the questions to be discussed later.

Appellees' action is based on the alleged negligence of appellants in the construction of the extension slab and the shoulder. Hereafter we will refer to the shoulder as the extension shoulder. In their original complaint appellees alleged that appellants were negligent in that they 'dug an excavation and opening several feet in length extending along the west side of the slab approximately one foot in width and approximately one foot in depth and left there without guards and it was [left] open without giving warning, which created a hidden or indiscernible hazard dangerous to the public'. Appellees have apparently abandoned this specific allegation of negligence except insofar as it relates to the allegations contained in their amendment to the complaint where appellants' negligence is stated thus: Appellants left 'the hole opening an excavation described in the original complaint in a careless and negligent manner, making a hole and opening apparent and imminently dangerous in the public highway where motorists were likely to drive their cars, and after so doing then refilled, and left, the hole and opening with improper materials and dirt without tamping the fill, as should have been done, which acts were carelessness and negligence, and by not so tamping and packing the sand with the proper dirt and materials went and left a hole apparent and imminently dangerous * * *.' The undisputed proof shows [and appellees do not contend otherwise] that when the contractors finished the job there was no hole left in the extension shoulder and therefore, as we see it, appellees predicate negligence on the allegation that appellants, in backfilling the extension slab and in constructing the extension shoulder used (a) improper materials and (b) did not properly tamp and pack the materials used.

The record shows without contradiction that appellants completed their contract on May 5, 1951; that the job was inspected on May 9, 1951 by appellants' superintendent and by the resident engineer and the assistant construction engineer in charge of bridge work for the Highway Department; that the job was formally inspected on May 22, 1951 by the State Highway Department engineer and by the officer in charge of construction and maintenance for the U. S. Bureau of Public Roads; that on May 22, 1951 the State Highway Department finally and fully accepted the job from appellants; that on August 7, 1951 the engineer of the U. S. Bureau of Public Roads, who could not be present at the final inspection on May 22, 1951 inspected the entire job and approved the same; and, that the wreck which caused appellees' injuries occurred on October 27, 1951.

Appellants make the contention that, under the above undisputed facts, they can not be held liable for damages, and, in support cite Memphis Asphalt & Paving Co. v. Fleming, 96 Ark. 442, 132 S.W. 222, 223. In that case appellant under contract with a city improvement district constructed a sidewalk along the side of a street and across a branch but did not construct any guard rail or barrier where it extended over the branch, nor was any required by the contract. Appellee was injured by falling from the sidewalk into the branch and the negligence alleged was the failure to construct a guard rail. Appellant's contention was that 'it had paved the street and constructed the sidewalk in accordance with the contract, and that the work was completed and accepted before the injury occurred.' The court said:

'The proof shows that the street had been paved and the sidewalk constructed in accordance with the contract plans and specifications, and that it had been in fact and formally accepted by the engineer in charge of the district on September 2d, and thrown open to the use of the public, and that plaintiff's injury occurred three days thereafter, and that later the city accepted the improvement of the entire district on October 6th or 7th without any change in the work on this sidewalk. The asphalt company's contract was with the improvement district, not the city. The general rule is that, after the contractor has turned the work over and it has been accepted by the proprietor, the contractor incurs no further liability to third parties by reason of the condition of the work, but the responsibility, if any, for maintaining or using it in its defective condition is shifted to the proprietor'. (Emphasis supplied.)

The contract which appellants here had with the State Highway Department was not introduced in the record, but there is no contention on the part of appellees that appellants did not construct the extension slab and extension shoulder in accordance with the provisions of the contract, except in one instance which we discuss later, recognizing, of course, appellees contend the construction was done in a negligent manner. It was stated by one of appellants' witnesses that the contract called for dirt to be used in making the fills, whereas the evidence shows the fills were made with a sand and gravel mixture known as s-5. However the undisputed proof shows that this change was first discussed with and sanctioned by representatives of the State Highway Department, and, as so changed, was finally accepted. The unescapable conclusion therefore is that the contract between the appellants and the State Highway Department was changed in this regard by mutual consent. So it must be said here as was said in the Memphis Asphalt case, supra, that the extension slab and extension shoulder were 'constructed in accordance with the contract plans and specifications, and that it had been in fact and formally accepted * * *.' Although the opinion in the cited case mentions no evidence of negligence on the part of the contractor the general rule stated by the court as copied above leads us to conclude that the same result would have been reached if evidence of negligence had been introduced, unless such negligence had come within the classifications later mentioned.

Appellees strongly insist that appellants were negligent in this instance in using s-5 gravel instead of dirt and in not properly tamping the material used in backfilling and in building the extension shoulder. However, even if it be conceded that the record shows substantial evidence of such negligence, appellants cannot be held liable under the holding announced in the case of Canal Const. Co. v. Clem, 163 Ark. 416, 260 S.W. 442, 443, 41 A.L.R. 4. In that case...