Smith v. Lafortune

• Decision Date: 31 July 1970
• Docket Number: 41848,41821,Nos. 41738,s. 41738
• Citation: 179 N.W.2d 136,288 Minn. 135
• Parties: Raymond R. SMITH, by Hazel L. Smith, his guardian ad litem, Respondent, v. Milton Eugene LAFORTUNE, Respondent, Rajala Construction Company, Appellant-Respondent, E. W. Coons Company, Appellant-Respondent.
• Court: Minnesota Supreme Court

Page 136

179 N.W.2d 136

288 Minn. 135

Raymond R. SMITH, by Hazel L. Smith, his guardian ad litem Respondent, v. Milton Eugene LAFORTUNE, Respondent Rajala Construction Company, Appellant-Respondent E. W. Coons Company, Appellant-Respondent.

Nos. 41738, 41821, 41848.

Supreme Court of Minnesota.

July 31, 1970.

Syllabus by the Court

1. Evidence Held to sustain special verdicts that highway contractors were negligent in failing to provide adequate warning signs indicating the location of a bypass, and that such negligence was the proximate cause of a collision between two vehicles which met head on near the entrance to the bypass.

2. The overall responsibility of the State Highway Department for supervising the placing of warning signs in areas under construction does not relieve contractors of their duty to make the highway safe for public travel.

3. A general highway contractor who is actively negligent in failing to provide adequate warning signs is not entitled to indemnity from a subcontractor, guilty of similar negligence, who performed the work.

4. Where a party to a negligence action inadvertently disclosed to the jury the effect of their special verdict, the opposing party declined a corrective instruction, and the court itself thereafter indicated in its charge that the jury should determine damages which resulted from defendants' negligence, it was not reversible error for the court to deny a mistrial.

5. It is within the discretion of the trial court to permit an expert witness to testify concerning the customary procedure for warning motorists who are about to enter a construction area.

6. The trial court was not required to exclude a manual on traffic control devices drafted pursuant to Minn.St. 169.06, subd. 1, which had been received without objecttion and discussed by counsel where the highway contract specifications required compliance with the manual.

Hammer, Weyl, Halverson & Watters and Anthony S. Downs, Duluth, for Rajala Const. Co.

Murphy & Kalar, Grand Rapids, for E. W. Coons Co.

D. A. Bourgin, Virginia, DeParcq, Anderson, Perl & Hunegs, Minneapolis, for Smith.

Spellacy & Lano, Grand Rapids, for Lafortune.

Heard before KNUTSON, C.J., and NELSON, MURPHY, OTIS, and THEODORE B. KNUDSON, JJ.

OPINION

OTIS, Justice.

This action arises out of a head-on collision between two automobiles on a bypass temporarily constructed while the main highway was being rerouted. The drivers, Raymond R. Smith and Milton Lafortune, sought to recover damages against the contractor, E. W. Coons Company, hereafter referred to as Coons, and subcontractor, Rajala Construction Company, hereafter referred to as Rajala, for their negligence in failing to furnish adequate warning signs. The jury brought in special verdicts against defendants Coons and Rajala, fixing damages in favor of Smith in the sum of $150,000 and in favor of Lafortune in the sum of $7,000. The trial court denied the contractor's claim for indemnity against the subcontractor. Those defendants appeal from the judgment and from an order denying them judgment n.o.v. or a new trial.

The scene of the accident was the west end of a bypass on U.S. Highway No. 169, two-fifths of a mile from the Pengilly cutoff, part of State Highway No. 65, in Itasca County. The bypass diverted traffic to the south of Highway No. 169 for a distance of .8 of a mile. On the morning of June 5, 1966, between midnight and 12:30 a.m., plaintiff Smith, driving a Chevrolet, had very nearly reached the west end of the bypass when the front right of his car came into violent collision with the front right of an Oldsmobile being driven by defendant and cross-claimant Lafortune. Both drivers sustained amnesia as a result of their injuries and were unable to recall the events which immediately preceded the collision.

1. On this appeal, defendants Coons and Rajala deny they were negligent in design, location, or placement of warning signs and assert that as a matter of law the proximate cause of the collision was not established by a fair preponderance of the evidence and that the verdicts were therefore based on speculation and conjecture.

As Lafortune approached the bypass, driving from west to east, he passed the following signs: At 2,000 feet, a barricade on each side of the road stating, 'ENTER CONSTRUCTION ZONE, PLEASE DRIVE CAREFULLY'; a sign stating, 'ROAD CONSTRUCTION 1500 FEET'; a sign stating, 'ROAD CONSTRUCTION 1000 FEET' with a speed designation, '30 MPH'; and a sign stating, 'ROAD CONSTRUCTION 500 FEET, 30 MPH.' Two barricades were erected and placed so as to completely block Highway No. 169 at a point some 350 feet from where the bypass began to veer off the main highway to the south or to the right of eastbound traffic. However, the white centerline had not been obliterated and continued to be visible up to a short distance west of the barricades.

The barricades were 5 feet high and 8 feet long--not reflectorized, but painted with high gloss enamel white and a dull black for contrast. The south barricade contained a black-and-yellow reflectorized sign with the word 'BY-PASS,' on top of which were two lights flashing intermitently. The north barricade contained a reflectorized black-on-yellow arrow, 2 feet by 4 feet, pointing to the south. These barricades were erected under the direction of the state project engineer and the Highway Department's chief inspector.

The bypass was constructed by Rajala. It was dusted and oiled by Coons, in the process of which all but one reflectorized road delineator disappeared. This operation was concluded on June 4, the day before the accident.

Following the accident, the two vehicles and the debris from the collision were found in Smith's westbound lane of traffic, south and in the vicinity of the two barriers. Although the witnesses were not in complete agreement as to the location of the debris, the evidence was compelling that Lafortune was on the wrong side of the road. In this state of the record, the other defendants argue that it is impossible to determine the cause of the accident and that the verdicts are therefore based on speculation and conjecture, citing Indianhead Truck Line, Inc. v. Anderson, 272 Minn. 497, 139 N.W.2d 271. There, we held that the physical facts made it impossible to determine which driver was over the centerline, or whether both were, in a head-on collision in which all the parties were killed. 'Any inference as to proximate cause would rest entirely on speculation and conjecture.' 272 Minn. 502, 139 N.W.2d 274. Defendants Coons and Rajala point out that in the instant case both drivers were familiar with the bypass since they had been over it at least once before. The answers to the special verdict do not determine in what respect these defendants were negligent. Hence Coons and Rajala argue that no theory of negligence advanced by Smith and Lafortune preponderates and therefore they cannot prevail.

We do not agree that the case is governed by Indianhead. On the contrary, the verdicts seem to us to be supported by our decision in Larson v. Township of New Haven, 282 Minn. 447, 165 N.W.2d 543. Larson involved a single-vehicle accident in which the driver was killed, and there were no witnesses. We sustained a verdict against the township, based on circumstantial evidence which permitted a jury to find that the failure to post a warning sign was the proximate cause of the driver's overrunning a T-intersection. Although the Larson case imposed liability on a municipality, we are of the opinion that the principles which there applied also govern the case at hand. As in the Larson case, the facts here would permit a jury to find that the contractors, Coons and Rajala, had created a 'pitfall, trap, or snare.' Although the road approaching the bypass contained four signs at 500-foot intervals west of the barricades, none of the signs warned that a bypass lay ahead or stated whether it was to the right or left of the main highway. Nor did the signs prepare approaching motorists for the appearance of the two large barricades which loomed up on the highway. On the contrary, the failure to obliterate the white centerline led drivers approaching from the west past the entrance to the bypass directly into the barricades.

There were no kerosence flares to guide drivers off the highway at any point along the bypass. Apparently reflectorized...