Imogene Driver v. Worth Construction Co.

273 S.W.2d 603, 154 Tex. 66, 1954 Tex. LEXIS 531

• Court: Texas Supreme Court
• Decided: December 15, 1954
• Docket: A-4530
• Status: Published

Opinions

Mr. Justice Griffin

delivered the opinion of the Court.

This is a suit for damages resulting from the death of Boyd Driver, husband of petitioner. Driver died as a result of injuries suffered by him when about 2 A.M., on the night of May 13, 1952, he drove his automobile down a portion of a new roadway then under construction by respondent, Worth Construction Co., hereinafter called contractor, in Tarrant County, Texas. Petitioner alleged that contractor had an open pit about sixteen inches deep where Ohio Garden Street crossed this new highway and that contractor had no barricade, flares, or warning signs to prevent travelers on this new roadway from driving* into said pit. A trial was had to a jury. After the jury had returned its verdict, petitioner filed her motion to disregard findings of the jury and for judgment, and contractor filed a motion for judgment on the jury’s verdict. The trial court heard argument on both motions and granted contractor’s motion, but overruled petitioner’s motion. On petitioner’s appeal the Court of Civil Appeals affirmed the trial court’s judgment. 264 S.W. 2d 174. Both parties applied for a writ of error, and we granted both applications.

There is no contention on the part of either party that the roadway on which Driver received his injuries had been accepted by the State and was opened for traffic to the public. All the evidence shows that this particular roadway was still under construction at the time of Driver’s injury.

Old State Highway 183, in the Ft. Worth vicinity, begins in the western part of town at. Camp Bowie Boulevard and runs generally north and east, crossing the Jacksboro Highway (No. 199), thence easterly via the stockyards district and on to Dallas, Texas. On the night of May 13, 1952, Boyd Driver and Ira Siratt were employees of a Mr. Tucker who operated Tucker’s Bar & Grill in downtown Ft. Worth. About 1 A.M., after Tucker had closed his cafe, Driver took Mr. and Mrs. Tucker to their home in west or northwest Ft. Worth. Siratt went along for the ride, and (after taking the Tuckers home) Driver was to return Siratt to his home in southeast Ft. Worth. Driver had taken the Tuckers home on at least two previous occasions at night and while the new part of Highway 183 was under construction and Siratt had accompanied him. The State Highway Department had let a contract to contractor to construct this new slab, and thus convert old Highway 183 into a highway of two strips of two one-way lanes each, separated by an unpaved open space of approximated twenty-nine feet in width. The new strip was south of the old highway, and when accepted by the Highway Department and opened for traffic would carry eastbound traffic toward downtown Ft. Worth. The most direct and convenient way to get from Tucker’s Bar & Grill to his home by car was to go out the Jacksboro highway to its intersection with Highway 183, thence out 183 to Merritt Street, thence left or south to other streets which would take one to the Tucker home. This route was the one used by Driver, who was driving his own car, on the night of the accident, and had also been used on the previous occasions when Driver had taken the Tuckers home after closing the cafe. On this night, on the return trip from the Tucker home to Siratt’s home, Driver drove across the new construction on Merritt and across the old highway, and about 100 yards north of the old highway. Evidently, sensing he was on the wrong road, he turned around and headed back south down Merritt Street, and crossed the old highway on which he had come from town, and on which he had returned to town on the previous trips. After crossing this paved road, and before he reached the new slab, Driver turned slightly to his left so as to enter upon the new slab and leave the flares and barrier to his right. The new slab protruded some six inches above the ground level at the place where Driver went upon it. Ohio Garden Street was some 800 feet easterly down the slab from the place Driver got upon it. Under the instruction of the municipal authorities, contractor had left a fire lane across the new right of way at Ohio Garden Street so that traffic might cross at this point. This area was unpaved, and the bottom of the fire lane was some twelve to sixteen inches below the top of the concrete slab of the new highway. Contractor had placed flares at each corner of the end of the slab at Ohio Garden Street intersection, thus making two flares on each side of the excavation, or a total of four flares. There was no barricade or barrier across either end of the concrete slab at Ohio Garden Street. The jury found the failure of the contractor to have such barricade was negligence and a proximate cause of the happening in question, but found that contractor did not fail “to have sufficient warning Alares on the new concrete roadway” at the Ohio Garden Street intersection. It was upon the jury’s answers to the issue as to barricades that petitioner bases her claim for judgment in her favor.

Petitioner, by points of error Nos. 1, 2, 3, 4, 7, 9 and 10, in varying language, complains of the action of the trial court and the Court of Civil Appeals in denying her a recovery by virtue of a jury finding in answer to Special Issue No. 34 that he was guilty of negligence in not traveling on the old roadway instead of upon the roadway under construction, and that such negligence was approximate cause of the injuries suffered by Driver and which caused his death.

We think the trial court was in error in basing his judgment against petitioner in part upon the jury’s affirmative answers to Special Issues Nos. 34 and 35. No. 34 asked the jury by appropriate language if “Boyd Driver was negligent in failing to travel on the old portion of Highway 183 on the occasion in question.” No. 35 inquired if such negligence was “a proximate cause of the accident in question.” The old portion of Highway 183 was the road on which Driver had come from downtown Ft. Worth on the night in question, and the road used by the public in returning to downtown Ft. Worth, and which Driver had used on the prior occasions he had carried the Tuckers home. Such issue decided no ultimate fact issue in this case. The fact that Driver was not traveling on any other Ft. Worth street save and except the new roadway under construction could not be determinative of the negligence of either contractor or petitioner with regard to the happening at the intersection of Ohio Garden Street where petitioner was injured. The jury’s answers to Nos. 34 and 35 should have been disregarded as wholly immaterial as to liability herein. Petitioner’s points of error 1, 2, 3, 4, 7, 9 and 10 are sustained.

Since we do not agree with the Court of Civil Appeals in its affirmance of the trial court’s judgment upon the ground that the jury’s answer to Special Issue No. 34 convicted petitioner’s deceased husband of contributory negligence and thus prevented her recovery, it is our duty to examine the other assignments of error in the Court of Civil Appeals to determine if there are assignments in that Court presenting other questions of law over which we have jurisdiction and upon which the judgment of the Court of Civil Appeals may be affirmed. Southern Pac. Co. v. Walters, 110 Texas 496, 221 S.W. 264; Holland v. Nimitz et al, 111 Texas 419, 431, 432, 232 S.W. 298 and 239 S.W. 185; Hunt v. Wichita County Water Improvement Dist. No. 2, 147 Texas 47, 211 S.W. 2d 743.

“The rule has therefore been developed, and has become well established, that when it is determined that the Court of Civil Appeals erred in basing its judgment on a particular ground, the Supreme Court is authorized to consider the briefs filed in that court, not for the purpose of reversing its judgment, but for the purpose only of determining whether, by considering other assignments therein, it could affirm such judgment. Cox., Inc., v. Humble Oil & Refining Co., Texas Com. App., 16 S.W. 2d 285; Jordan v. Morten Investment Co., 127 Texas 37, 90 S.W. 2d 241; Garcia v. Moncada, 127 Texas 453, 94 S.W. 2d 123.” Texas Employers Ins. Ass’n. v. Kennedy, 135 Texas 486, 143 S.W. 2d 583, 585.

Upon examination of respondent’s brief we find a counter proposition that the trial court’s judgment should be affirmed because the new concrete roadway, at the time of the accident not being opened for public travel, the only duty owed to Driver by contractor was to properly warn him, and not to wilfully, wantonly, or by gross negligence injure him. We think this point should be sustained.

It is fundamental that the liability of contractor must depend upon the failure to properly discharge the duty, if any, which contractor owed to Boyd Driver on the occasion in question. T. J. Mansfield Const. Co. v. Gorsline, Texas Com. App., 288 S.W. 1067 (3).

The duty of contractor to the public was to give adequate warning that this concrete slab was not open to travel. “If liable under waiver of sovereign immunity, an agency charged with the duty of maintaining public roads or highways is responsible for injuries received on a regular highway, but not for those received on a road not public, not yet opened to traffic, or closed before the occurrence of the accident.” 40 C.J.S. 295, Highways Sec. 255a. See also notes 7 A.L.R. 1203, 104 A.L.R. 955, 119 A.L.R. 841. 19 McQuillin: Municipal Corporations, 3rd Ed. Secs. 54.27, 54.98. Restatement of the Law, Torts, Vol. 2, p. 1132,. Sec. 418 (l)b.

This Court in Shuford v. City of Dallas, 144 Texas 342, 190 S.W. 2d 721, 724, quotes with approval from City of Terrell v. Howard (Texas Civ. App), 85 S.W. 2d 283, 289, reversed on other points 140 Texas 459, 111 S.W. 2d 692, the following statement regarding a municipality’s liability “ ‘a municipality may entirely close a street while repairs are going on, and if a street is so closed, there is no liability for injuries, provided, of course, it is properly closed, i.e., the barriers are sufficient to warn travelers and to impart notice that the street is closed. Moreover, if necessary to prevent accidents, a municipality not only may but it is its duty to close the street to the public by some barrier’.”

“It is clear that the street need' not be so barricaded as to preclude absolutely the possibility of injury, but it is sufficient that a plain warning of danger in traveling a street is given. 7 McQuillin on Municipal Corporations (2d Ed.) 217; Hunter v. (City; of) Monstesano, 60 Wash. 489, 111 P. 571, Ann. Cas. 1912B, 955; McDonald v. Defgnon-McLean Contracting Co., 124 App. Div. 824; 109 N.Y.S. 519; Jones v. Collins, 177 Mass. 444, 59 N. E. 64; Leonard v. Boston; 183 Mass. 68, 66 N. E. 596; Lineburg v. St. Paul, 71 Minn. 245, 73 N. W. 723; John D. Roberts, Administrator, v. Town of Eaton, 238 N.Y. 420, 144 N. E. 667, 36 A.L.R. 411, and notes.

“The rule is well summed up as follows: it is the duty of the municipality when the obstructions are placed in the street to use such means as are reasonably necessary to warn those using the streets of the presence of the obstruction and it is generally a question for the jury ‘under the particular facts in each case to determine whether or not the means used for this purpose were reasonably sufficient.’ Guard rails, lights, watchmen, any or all might be required according- to the local conditions. In some instances guard rails might be amply sufficient. In others lights, while in still others additional means might be required.” McQuillin on Municipal Corporations, supra.

Although some of the above quotations have to do with the liability of a municipality, it is settled that an independent contractor engaged in highway construction has the same duties as to warning barricades, flares, etc., 21 Texas Jur. 662, Sec. 144, 40 C.J.S. 288, Sec. 252b; 25 Am. Jur. 653, Sec. 361.

The trial court, in order to determine whether or not contractor was guilty of negligence in' not having adequate warning or barricades at the intersection of Merrit Street with the new slab, submitted a number of issues to the jury. The burden was upon the petitioner to establish that the contractor had failed to give sufficient warning to the traveling public that the new slab was not open to travel. Unless petitioner discharged this burden, she could not recover, for without favorable findings on such issues, contractor had violated no duty to Boyd Driver, and therefore could not be guilty of any negligence. The evidence showed that contractor had flares, a barricade, and a sign “Construction. Drive Carefully” at the Merritt Street intersection. Therefore, it was a jury question as to the sufficiency of such warning devices. Shuford v. City of Dallas, supra, 25 Am. Jur. 872, Sec. 587; 40 C.J.S. 338, Highways Sec. 281a.

In order to properly place the burden of proof within the issue the trial court submitted the issues as to adequate warnings,' etc., in the negative. Special Issue No. 1 was as follows:

“Question: Do you find and believe from a preponderance of the evidence that at the time of and immediately before the happening in question the defendant failed to have a barricade on the new concrete roadway at its intersection with Merritt Street sufficient to prevent the travelling public from entering upon such roadway? Answer ‘yes’ or ‘no’.”

to which the jury answered “No.” Special Issue No. 4 was answered that it was not negligence on the part of the contractor in failing to have a flagman or watchman at the Merritt Street intersection to warn the traveling public from driving on the new concrete roadway. Special Issue No. 8 asked the jury to determine from a preponderance of the evidence if “the defendant failed to have signs at the Merritt Street intersection sufficient to give notice to the traveling public that the new concrete roadway was not open to traffic.” The jury answered “NO.” The jury answered “No” to Special Issue No. 11 which inquired by appropriate language if “the defendant failed to have flares at the Merritt Street intersection sufficient to give notice to the traveling public not to enter upon the new concrete roadway.”

Thus the jury found that the contractor did not fail to discharge the duty he owed to give notice to the traveling public not to enter upon the new concrete roadway. It is argued by petitioner that the negative submission and the negative answers of the jury is not an affirmative finding that the contractor did have sufficient barriers, signs, and flares to give notice to the traveling public not to enter upon the new concrete roadway. The burden was upon the petitioner to secure favorable jury findings as to facts that would show a breach of contractor’s duty owed to the traveling public (i.e., that contractor was negligent, etc.). In other words, petitioner must show that contractor failed to have adequate warnings, etc. Under the facts in this case, contractor had no burden or duty to show it had adequate warnings, etc. Until petitioner has established neglicence on the part of contractor,. there can be no liability upon contractor. No objections were made to the form of submission or negative wording of these issues by any of the parties to the suit.

We think a better way to have submitted these issues would have been as provided in Rule 277, T.R.C.P. “* * * Where practicable, all issues should be submitted in the affirmative and in plain and simple language. It is proper to so frame the issue as to place the burden of proof thereon, but ivhere, in the opinion of the court, this cannot be done xoithout complicating the form of the issue, the burden of proof on such issue may be placed by a separate instruction thereon. * * *” (Emphasis ours). Our experience teaches us that a negative submission calling for a negative answer — i.e.—a double negative, not only confuses the jury, but also in many instances confuses all counsel.

Petitioner has a complaint that the favorable jury answers to the special issues submitted by the court on the twelve specific grounds of active negligence on the part of the deceased in getting upon and driving down the roadway under construction, as alleged by contractor, are in conflict with the answers of the jury that contractor did not fail to give adequate warning to deceased. There is no conflict in these answers. By the answers of the jury that contractor did not fail to give adequate warning to deceased, the jury absolved contractor of any negligence on his part, and therefore plaintiff cannot recover against the contractor. The jury’s answers absolving deceased of contributory negligence can form no basis for recovery by the petitioner. She must first show a breach of duty owed by contractor before she can recover. Not having secured jury findings as to such breach of duty, petitioner cannot recover by virtue of the fact that deceased was not guilty of contributory negligence. The issues of contributory negligence were defenses plead by contractor as a defense in the event it had been found guilty of negligence. Plaintiff must show negligence on the part of the contractor before there can be any liability on contractor’s part.

Our decision above of necessity overrules petitioner’s assignments of error numbered 5, 6 and 8.

The new portion of the road not being open to travel by the public generally, but being incomplete and still under construction, the contractor had a right to prevent the public from using said roadway. Contractor also had a duty to warn the traveling public not to use this roadway. This duty he sought to discharge by installing and maintaining warning signs, flares and barricades. Whether or not contractor had adequate warning devices was a jury question, and the burden was upon plaintiff to secure a finding by the jury that contractor had failed in this duty owed Driver and the public generally — i.e.—that contractor was guilty of negligence in this regard.

When Driver entered upon the roadway in spite of these warnings, he was wrongfully upon such roadway, and had no legal right to be thereon; therefore, contractor owed Boyd Driver only the duty not to injure him wilfully, wantonly, or through gross negligence. Carlisle v. J. Weingarten, Inc., 137 Texas 220, 152 S.W. 2d 1073. Petitioner has no pleadings seeking to establish liability on such grounds, nor is any contention made that the evidence would support a recovery thereon. No issues on these grounds were requested or submitted. Therefore no liability can be predicated on the jury’s answer that the failure to have a barricade across the new concrete slab at Ohio Garden Street was negligence and a proximate cause of the accident. Such failure to have a barricade at the Ohio Garden Street constituted only simple negligence, and not gross negligence; nor was such failure wilful or in wanton disregard for the safety of Driver or the traveling public. Petitioner had a point that there was “no evidence” to sustain the jury’s answers to Special Issues Nos. 1, 4, 8 and 11. We find there is evidence to sustain these findings and we overrule petitioner’s point of “no evidence.”

We approve the holding of the Court of Civil Appeals upon the admissibility of the photograph of the Merritt Street intersection and its environs. Accordingly we overrule petitioner’s assignment No. 11.

We have examined the record and find that the Court of Civil Appeals was correct in holding admissible the testimony of the witness, Welton Gumming, over the objection lodged thereto by petitioner. We overrule petitioner’s point of error No. 12.

Upon examination of petitioner’s brief in the Court of Civil Appeals, we find petitioner’s assignments of error that the jury’s answers to those special issues, (Nos. 1, 4, 8 and 11) inquiring whether or not the contractor had failed to give adequate warnings by barricade, flares, signs and presence of a watchman, are against the overwhelming preponderance of the evidence. These assignments were not passed upon by the Court of Civil Appeals. We have no jurisdiction to pass upon such assignments. This cause must be remanded to the Court of Civil Appeals with directions that they pass upon the assignments as to the weight and preponderance of the evidence to sustain the finding by the jury in answer to the issues in question, as well as other assignments which the Court of Civil Appeals did not pass upon, and which are not determined by this opinion.

This cause is reversed and remanded to the Court of Civil Appeals for further proceedings consistent with this opinion.

Opinion delivered December 15, 1954.