White v. White Consolidated

• Decision Date: 24 October 1946
• Docket Number: No. 8909.,8909.
• Citation: 157 F.2d 758
• Parties: WHITE v. WHITE CONSOLIDATED, Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

157 F.2d 758 (1946)

WHITE v. WHITE CONSOLIDATED, Inc.

No. 8909.

Circuit Court of Appeals, Seventh Circuit.

October 24, 1946.

Oscar C. Strom, of Gary, Ind., Edmond J. Leeney, of Hammond, Ind., and Irving Herriott and W. Ward Smith, both of Chicago, Ill., for appellant.

James P. Gleason, of Michigan City, Ind., and Robert H. Moore, William J. Regan, and Wendell W. Goad, all of Gary, Ind., for appellee.

Before KERNER and MINTON, Circuit Judges, and BRIGGLE, District Judge.

MINTON, Circuit Judge.

The appellee, herein referred to as the plaintiff, a resident of California, was employed by Edgar Clyde Ennis as a member of his band. This was a well-known radio band and in June, 1941, it had an engagement to play at the Palmer House in Chicago, Illinois. On the night of June 30, 1941, the band had an extra engagement to play at a U. S. O. show in Gary, Indiana. For this show Ennis paid the plaintiff an extra fee. The manager of the band chartered a bus in Chicago to transport the members of the band to and from Gary. While returning to Chicago with the band about one-thirty a. m. July 1, 1941, the bus collided with a pole of the Gary Railways Company located in the center of Broadway Street between 75 and 100 feet south of 23rd Avenue. As a result of this collision, the plaintiff was seriously injured.

Broadway, along which ran State Highway 55, was paved to a width of 66 feet at the point in question, including a twenty-foot strip in the center of concrete in which were the north and southbound tracks of the Gary Railways Company. Between the north and southbound tracks, beginning approximately 75 to 100 feet south of 23rd Avenue and extending southward several blocks were poles that supported the trolley wires of the street railway. North of 23rd Avenue the poles were back of the curb line. Except for this concrete strip, the street was paved with brick.

The appellant, herein referred to as the defendant, was a contractor engaged at the time under a contract with the Indiana State Highway Commission in resurfacing with asphalt the brick pavement of Broadway from 20th Avenue to 26th Avenue. Under its contract with the State Highway Commission, the defendant was authorized and directed to pave one side of the street at a time, and at the time in question was resurfacing the west side of Broadway, south of 23rd Avenue. The defendant had no contract to repair the twenty-foot center concrete strip and had no control over that part of the street.

On the evening of June 30, 1941 the defendant placed warning signs north of 23rd Avenue and at the south curb of 23rd Avenue placed barricades across Broadway from the west curb to within 18 inches of the west rail of the south bound tracks and southward along that part of the street the defendant was resurfacing. The barricades consisted of oil drums with bomb torches on top of them and boards or trestles between the drums. The lights were visible for at least 500 feet. The barricades were authorized by and erected in a method approved by the State Highway Commission. East of the barricade at the south curb of 23rd Avenue was the twenty-foot concrete strip with the poles of the Gary Railways Company in the center, the first pole located approximately 75 to 100 feet south of 23rd Avenue. There was a space of approximately 12 feet between the poles and the barricades along the east side of the western strip the defendant was resurfacing. There was no watchman at the point in question. There were no signs on the barricades directing the traffic in any direction. The barricades, which were lighted by torches, closed that part of the street that was being resurfaced. There was no complaint about the barricades, or the lights thereon.

The Gary Railways Company maintained a light on its pole south...