Ulmen v. Schwieger

• Decision Date: 08 July 1932
• Docket Number: No. 6879.,6879.
• Parties: ULMEN v. SCHWIEGER et al.
• Court: Montana Supreme Court

92 Mont. 331

ULMEN

v.SCHWIEGER et al.

No. 6879.

Supreme Court of Montana.

March 30, 1932.

As Amended on Denial of Rehearing May 7, 1932.

As Further Amended July 8, 1932.

Appeal from District Court, Prairie County; Stanley E. Felt, Judge.

Action by George Ulmen against R. A. Schwieger and W. P. Roscoe. From a judgment in favor of plaintiff, defendants separately appeal.

Affirmed as to defendant first named, and reversed as to defendant last named.

ANGSTMAN and FORD, JJ., dissenting in part.

Brown, Wiggenhorn & Davis, of Billings, for appellant R. A. Schwieger.

Wood & Cooke, of Billings, for appellant W. P. Roscoe.

Thomas M. Murn, of Terry, H. Lowndes Maury, of Butte, and P. F. Leonard, of Miles City, for respondent.

ANGSTMAN, J.

This is an action for damages for personal injuries. The jury found for plaintiff, and assessed his damages in the sum of $10,000. From the judgment entered on the verdict, the defendants separately appealed.

The evidence on some features of the case was conflicting, but the jury was warranted in finding the following salient facts: That on September 2, 1928, plaintiff, traveling by automobile, was taking his sister, Loretta, from Ray, N. D., to Miles City, Montana, where she had accepted a position as teacher in the high school. Plaintiff drove the car, an Essex coach, as far as Sidney, and then his sister, an experienced driver, did the driving until the plaintiff was injured. At a point about one mile west of Fallon, at about sunset, the car was driven into an open excavation and against a concrete culvert which had been constructed across what the plaintiff and his sister supposed was the regularly established and used highway. The top of the culvert was about a foot lower than the top of the highway, and between the top of the highway and the culvert was a sheer drop or pit; the hole and culvert were not discovered by the occupants of the car until the car was within 20 or 30 feet of the hole; efforts to stop the car before running into the hole were unavailing. The impact caused serious injuries to plaintiff. The car was being driven about 25 to 30 miles per hour before the occupants observed the pit and culvert. The road on both sides of the culvert had been graded and smoothed over up to the edge of the pit in which the culvert was erected, and, on approaching the culvert from the east, the road presented the appearance of being well traveled; there were no signals, signs, or barricades at the culvert. The pit or hole was 5 or 6 feet deep, extending across the full width of the highway. The highway was a part of the state highway known as federal aid project 130-C, from Fallon to Terry, which was in process of construction during the year 1928; the contract for its construction was let by the state highway commission to defendant Schwieger in the spring of 1928. Paragraph 40 of the contract provided: “The Contractor shall provide, erect and maintain all necessary barricades, suitable and sufficient red lights, warning and danger signals, provide a sufficient number of watchmen and take all necessary precautions for the protection of the work and safety of the public. The Commission will provide and the Contractor shall erect and maintain acceptable and adequate detour signs at all closures and along the detour routes. All barricades and obstructions shall be illuminated at night, and all lights shall be kept burning from sunset until sunrise.”

Formerly the road at a point about one-half a mile west of Fallon turned south across the railroad track, and then paralleled the tracks on the south; the new road was built on the old road until it reached the point where the old road turned south to cross the railroad track, and the new road, instead of turning south, continued due west, paralleling the railroad tracks on the north. The culvert was about 2,100 feet west of the point where the old road turned south to cross the railroad tracks. Defendant Schwieger did not himself perform the work under his contract with the state highway commission, but sublet the grade work to Herbert Adams and the concrete work to defendant Roscoe. Adams was an independent contractor. Roscoe agreed to build the culvert in accordance with the plans and specifications of the contract between Schwieger and the highway commission. The grading of the road had been completed about the last of July or the first of August. Defendant Roscoe started constructing the culvert about August 22; it was completed on August 31, but the dirt had not been filled in, due to the fact that it takes the concrete about 20 or 21 days to dry; Adams was chargeable with the duty of filling in the dirt beside the culvert. The concrete work had not been accepted by either the defendant Schwieger or by the highway commission on September 2; in fact, the grading had not been accepted by the highway commission.

Mr. Woodward, engineer for the highway commission, testified: “I don't know when this was accepted. Well, it was sometime after the whole job was done; they don't accept any portion of the work at all; they accept the whole job complete. It is all accepted together. In fact, this work is the work of the respective contractor until the highway commission accepts it.”

The old road, turning south to cross the railroad tracks, was the regularly used highway known as the Yellowstone and National Parks highway, and was still in use as such on September 2, and was the only road at that time and place that had formally been dedicated and opened for public use. There was a sharp drop of about four feet from the grade to the old road as it turned to cross the railway tracks, and it was not readily observable by one traveling the graded road without the aid of detour or other signs. For the sake of convenience only we shall hereafter refer to the old road turning off the grade as the “detour.” The evidence was in sharp conflict as to whether there was an adequate detour sign or barricade at the point of the detour to advise travelers not to travel the new road.

In behalf of plaintiff, witnesses testified that, on many occasions prior to the time plaintiff sustained the injuries complained of, there were no detour signs or any barricade at the point of the detour, and that before as well as after the culvert was constructed many automobiles traveled, or attempted to travel, the new road, without any warning not to do so. Witnesses for defendants testified that a barricade was constructed at the point of the detour consisting of a telephone pole about 16 feet long, placed across the road, with a fence post or tie under one end, raising the end about six inches off the ground; that to the pole was attached, first by nails, and later by wire, a “Road Closed” sign; that on the north end of the pole there was sufficient space to allow traffic to pass on the grade, but this was at times obstructed by a fence post laid across it, with one end against the north end of the telephone pole.

There was also a conflict in the evidence as to whether there was any barricade at the point of the detour on September 2 and prior thereto. The evidence is without dispute, however, that the barricade was found lying in the ditch off the grade at about 8 p. m. on September 2. And plaintiff's evidence was to the effect that there was no barricade at the time he traveled the new road to the culvert. From this conflicting evidence we must assume, since the jury found for plaintiff, that it found those chargeable with the duty of so doing did not discharge their duty to erect and maintain adequate barricades and detour signs to warn the traveling public.

Defendant Schwieger insists that, since he sublet all the work in connection with the construction of the highway to independent contractors, he cannot be held liable for the injuries to plaintiff.

The general rule is that an employer is not liable for the wrongful or negligent acts of an independent contractor. To this general rule there are well-recognized exceptions. One exception is where the work to be done is intrinsically dangerous or hazardous. This exception was pointed out in Shope v. City of Billings, 85 Mont. 302, 278 P. 826.

Judge Dillon, in his work on Municipal Corporations (5th Ed.), section 1723, states the exception to the rule as follows: “Accordingly, the later and better considered cases in this country respecting streets have firmly and, in our judgment, reasonably, established the doctrine that, where the work contracted for necessarily constitutes an obstruction or defect in the street, of such a nature as to render it unsafe or dangerous for the purposes of public travel, unless properly guarded or protected, the employer (equally with the contractor), where the injury results directly from the acts which the contractor engaged to perform, is liable therefor to the injured party.” See, also, 39 C. J. 1335, and 14 R. C. L. 97.

The exception was given recognition in Cameron Mill & Elevator Co. v. Anderson, 98 Tex. 156, 81 S. W. 282, 1 L. R. A. (N. S.) 198;Thomas v. Saulsbury & Co., 212 Ala. 245, 102 So. 115;Montgomery v. Garza (Tex. Civ. App.) 290 S. W. 210;Wilkey v. Rouse Construction Co., 224 Mo. App. 495, 28 S.W.(2d) 674, and other cases.

But defendant Schwieger contends that the exception to the general rule applies to cases only where the work contemplated by the contract has to do with obstructions or excavations in an existing highway, in use as such, and not to a case, as here, where the work contemplated was that of constructing a new highway where none existed before. Circumstances presented here make the exception applicable. The work contemplated by the contract between the highway commission and Schwieger was not altogether that of constructing a new highway where none existed before. For about half a mile west from the town of Fallon the work embraced in the federal aid project No. 130-C, which was awarded to defendant Schwieger, followed the course of the old...