Trantham v. Gillioz, 7906

• Decision Date: 21 August 1961
• Docket Number: No. 7906,7906
• Citation: 348 S.W.2d 737
• Parties: Billy Jim TRANTHAM, Plaintiff-Respondent, v. M. E. GILLIOZ and Snyder Construction Company, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 737

348 S.W.2d 737

Billy Jim TRANTHAM, Plaintiff-Respondent, v. M. E. GILLIOZ and Snyder Construction Company, Defendants-Appellants.

No. 7906.

Springfield Court of Appeals, Missouri.

Aug. 21, 1961.

Rex Titus and John R. Martin, Joplin, Mann, Walter, Powell, Burkart & Weathers, Jack A. Powell, Springfield, for defendants-appellants.

Lilley, Cowan & Overfelt, Louis W. Cowan, Springfield, for plaintiff-respondent.

RUARK, Judge.

Defendants have appealed from a $7,500 judgment on verdict rendered in favor of plaintiff, now respondent, Trantham because of injuries alleged to have been sustained when the car in which he was riding at night crashed into, and went over, a dirt 'pad' which extended across the pavement of an uncompleted highway then in the process of construction.

The locale of the incident was approximately north of the town of Strafford, which lies on 'old' 66 and approximately midway between Springfield on the west and Marshfield on the east.

Highway 66 was being made into a divided highway. On the stretch of road here involved, a concrete pavement had been laid for some time and was intended to constitute the north (westbound) lane of 'new' 66. Although the construction had not been finished, this new pavement had (previously) been open so that the public could travel over it. Defendant-appellant Snyder had the subcontract for grading, laying of pipe, and the final finishing for the (approximate) 'mile or two' stretch of road here involved. A part of this project consisted in the grading up of State Highway 125 (a north-south road) at a point where it would cross the new highway so that an overpass might be built. The work being done was primarily along the sides of and not on the completed pavement. A week to two weeks prior to plaintiff's accident, a former crossover between the two roads had been closed by barricade and the stretch involved in Snyder's work had been barricaded at both ends. This work had commenced, but, because of weather conditions, it had not progressed continually. The pad which the plaintiff struck was located at the site of the contemplated overpass for Highway 125. This was approximately a quarter-mile from the west end of the section of road involved. In the building of the overpass it was necessary to take dirt from the south side and haul it north across the pavement. The purpose of the pad, as we understand it, was to permit the contractor's heavy equipment to cross and recross the new pavement in the grading operation. It is a customary construction procedure and is required by the Highway Department. The pad itself was made of dirt, was from two to three feet high, from twenty to twenty-five feet in width (east and west), and extended completely across the pavement. Plaintiff's Exhibit 5, a photograph taken several days afterward, shows the pad to be two to three feet high across (approximately) the south two-thirds of the pavement, with another mound or ridge of dirt, several feet higher, atop the pad and extending approximately across the north third of the pavement. Plaintiff's principal witness, Meyers, identified the picture, 'that was the position of the dirt,' but as to the mound or ridge of dirt atop the north third of the pad he said he couldn't remember whether or not it was there that night.

At the west end of the project strip was a crossroad and a barrier of the 'horse type.' This barrier appears to have been somewhat battered from having been run into. It extended only halfway, or across one lane of the new pavement.

Now we go to the east end and come westward from Marshfield in the same direction plaintiff was traveling on the night of his alleged injury. The completed divided highway coming west from Marshfield ended at an east barrier. This was a fence-high post and board barrier, extending completely across the north lane of the 'new' highway and across the space between this lane and the south lane, so as to effectively turn all westbound traffic into the south or 'old' lane. Approaching this barrier from the east (plaintiff's direction of travel) were various signs at different intervals. One was a State Highway Department sign in large letters stating that 'This highway improvement is for your future safety and convenience. Please drive carefully.' Another was 'Detour 300 feet ahead.' Another, 'Two-lane pavement.' Another, 'Road construction. Slow.' Yet another, 'Slow 30 miles.' On the barricade itself were red or yellow blinker lights. A large sign in the center of the barricade said 'Detour' with an arrow pointing to the south. Near the south end of the barrier was another sign,.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Going west from the barricade and still following plaintiff's course of travel, at somewhere around 300 feet was the barricade between the old highway and the new pavement. This was evidently to bar off what had formerly been a crossover between the old highway and the new. Thence westward the new pavement proceeded approximately paralled with the old except that its course bore a little more north, and the distance between the two gradually widened as the traveler went west.

Although the former crossover was blocked by the inside barrier, there were numerous, or at least several, places where the persistent deviator, if he chose, could leave the detour road and cross back over onto the road yet under construction, this because there were several farmhouses on the north side of 'old' 66. Since these houses had access lanes to 'old' 66, and since the 'new' highway lay between the houses and the old road, these local people necessarily crossed the new pavement to get to the old road. These lanes were not severally barricaded against access by turning down the new road, because, according to the defendant contractor, 'It would have been impossible for our forces to work with barricades.' There is no question that these local people did, during the period of the barricades, from time to time use portions of the closed road as a matter of convenience, although, as one of the plaintiff's witnesses described it, there were times when part of the new road was torn up, 'there was machinery' up and down the road, and 'part of the time some sections of the road had something on it, piled on it.'

Also workmen engaged on the project drove their cars around the end barricades and parked somewhere near where the immediate work was being done. The project also had the customary quota of inspectors, foremen, and errand men coming and going. Also some men looking for work would drive around the barricades and go down to the then job site. Beyond the use of this section as above related, we find no substantial evidence that it was either open to, or used by, the general public during the period of one to two weeks when the barricades were up. According to defendants' witnesses, the State Highway Commission had the control and direction as to the type and place of signs and barriers. None had been required for this pad.

One Charles Edward Meyers, age eighteen, lived two miles northwest of Strafford. He went to high school at Marshfield and was about to graduate. Marshfield lay to the east, but it was not necessary to use, and Meyers did not live on or customarily use, the 'new road,' although he had been on it two or three times. He said he had seen other vehicles use the stretch of road but had never met any vehicles on it himself.

Plaintiff Trantham, age thirty at time of trial, was a rural mail carrier with a route out of Marshfield, west, northwest, and southwest, but there is no direct evidence that any of his route followed Highway 66. He owned a Ford Fairlane hardtop, six months new, in good condition, with good lights which would reveal an object 350 to 400 feet ahead (his driver said 300 feet), and good brakes. He and Meyers, the high school boy, in the plaintiff's language, 'buddied around together,' and Meyers sometimes drove this car. Plaintiff testified that he had used the particular section of the road frequently; that he had taken Meyers home three to five times a week; that sometimes he followed the 'regular detour' and sometimes used the section of road in question. He had seen other vehicles on the section. He knew that 'it showed a detour.' He knew of warning signs to the east of the barricade and of course knew of the barricade and the detour sign there. He explained his answers in a previous deposition--that he knew they were working on both sides of the highway grading for the overpass--by saying 'that road had been there for three or four years. That part of the laying was not under construction.' But he knew 'they were working around that road' and he knew 'they were doing some grading there' (at the site of the future 125 overpass). He had seen other vehicles using the section 'detoured around.' 'The road was used by local people.'

On Sunday, May 11, plaintiff took Meyers from Marshfield to Meyers' home to get a graduation gown, and back. He accomplished this (with plaintiff driving the car) by driving west on 66 until he came to the east barricade with 'flashing red lights or yellow lights' and with 'a 'Detour" pointing to the left onto 'old' Highway 66. He drove off onto 'old' 66 until he had passed the barricade and then 'I turned right back onto the new pavement.' The reason for doing this, according to Meyers, was 'it is a lot closer to get to my house.' He drove on down the new pavement (the section of 'new' 66 here in question) past the place where the 125 overpass was contemplated, on west another quarter- or half-mile, where he turned off on the road which led to Meyers' home. Plaintiff and Meyers returned to Marshfield over the same route that evening. There was no pad or obstruction across the road at the scene of the contemplated 125 overpass that evening.

On the next night, May 12, plaintiff and Meyers met in Marshfield at 6:00 or 7:00 p. m. They drove...