Plaintiff in Error is a road construction contractor.
While repairing a portion of a State highway under contract with the State Road Department in Florida, the contractor, with the approval of the State Road Department, routed traffic around the place where the repair work was in progress by way of a designated detour and, to effectuate this purpose, set up a signboard eight feet long and six feet high directing the traffic to the detour. In the night time the contractor kept three adequate red lights burning on this obstruction or barricade which lights were amply sufficient to warn the public traveling on the highway of the location and position of the obstruction or barricade and to light the detour sign thereon.
Defendant in Error while a passenger by invitation in the automobile of another, was injured when the automobile was driven into the barricade in the night time. She sued the owner of the automobile and the contractor as tort feasors. She alleged that the automobile was so negligently driven and handled as to cause the accident and injury and,
"That on to-wit: July 13th, 1934, the defendant, H.E. Wolfe Construction Company, Inc., was engaged in the construction and repair of a certain public highway known as Dixie Highway between Town of Ojus and the City of Miami in Dade County, Florida, and did construct and maintain a certain barricade upon said highway approximately thirty feet (30') south of the county line separating Broward from Dade County, Florida; that said highway *Page 812 was at point of barricade and for many miles north therefrom a smooth paved highway used extensively by the public in automobiles entering the City of Miami; said highway at point of barricade being approximately nineteen feet (19') in width and said barricade being approximately one hundred feet (100') south of an easterly curve in said highway; that said defendant, H.E. Wolfe Construction Company, Inc., so negligently and carelessly constructed and maintained said barricade as to make it dangerous to life and property of persons using said highway at night time in this to-wit: said barricade consisted of a solid wall of boards approximately seventy inches (70") high, six feet twenty-two and a half inches (6' 22 1/2") in width, held together by certain large heavy timbers securely nailed and behind said barricade and as a support thereof was piled approximately three (3) tons of rock, part of which extended approximately eighteen inches (18) out and over the highway on both ends or sides of said boarded wall aforesaid; said barricade not being illuminated nor otherwise lighted, in a manner to give warning to motorists upon said highway."
"And for second count, plaintiff says: that on to-wit: July 13th, 1934, H.E. Wolfe Construction Company, Inc., being engaged in the construction of a certain public highway in Dade County, Florida, between Ojus and Miami, Florida, did build, construct and maintain a certain barricade upon said highway near the county line separating Broward and Dade County, in such a negligent and careless manner as to be dangerous to life and property of persons traveling upon said highway at night time in this to-wit: said barricade consisted of a board wall approximately seventy inches (70") high, approximately six feet twenty-two and a half inches (6' 22 1/2") in width, held *Page 813 together with certain other timbers securely nailed; behind this boarded wall and as a support thereof was piled several tons of rock, part of which extended out over the highway and beyond the ends of said boarded wall to a distance of approximately eighteen inches (18"); said barricade being located south of an easterly curve in said highway whereby the lights from an approaching automobile upon said highway would not shine upon said barricade until said approaching automobile had completed the curve and would thereby be within approximately seventy-five feet (75') of said barricade; that defendant failed and neglected, upon the night of July 13th, 1934, to have said barricade illuminated or otherwise lighted in such a manner as to give approaching motorists warning of its presence, nor did defendant have other means of warning to motorists upon said highway of the presence of said barricade."
There were other similar allegations in nowise materially different from these.
The jury found in favor of the defendant automobile owner and against the contractor.
The obstruction placed on the highway was not an unlawful one when considered in connection with the purpose for which, and the manner in which, it was being used. It was properly lighted and so arranged to give reasonable and prudent persons traveling on the highway, fair warning and opportunity to pursue a safe and convenient way to proceed on a journey in that locality. Such sign and obstructions are required for the safety and convenience of the traveling public.
No such negligence as is alleged in the declaration to have been committed by the contractor is shown by the evidence to have been so committed by it. *Page 814
The testimony of the driver of the automobile shows affirmatively that he was at the time driving the automobile in such a manner as to be guilty of negligence as defined by this Court in the opinion in the case of Union Bus Co. v. Smith, as Administrator, 104 Fla. 569, 140 So. 631, in which we held: "Driving automobile in joint enterprise at rate preventing its control within driver's vision constituted negligence, preventing recovery for death of driver's companion it contributed thereto."
In the instant case neither the question of joint enterprise nor of contributory negligence is presented. But the rule, that to avoid being guilty of actionable negligence the driver of an automobile must so operate the automobile as to have it in control within his vision is applicable. If his scope of vision is shortened on a curve he must proportionately reduce his speed. His speed must be such that he can safely stop his automobile after an obstruction comes within the range of his vision and before coming in contact with the obstruction; and all this must be with the assumption that he is complying with that other duty to keep a constant lookout ahead as far as his range of vision for obstructions or other travelers on the highway, and that he constantly performs that other duty to keep on the right of the center of the highway except when passing another traveler going in the same direction in which he is proceeding.
All of these rules were violated by the driver of the automobile in the instant case, as is shown by his own testimony.
In a case like this the Supreme Court of the State of Utah, 38 P. 2nd Ed., page 743, said: "For the purposes of this opinion it may be assumed the driver of the car was guilty of negligence. There is certainly sufficient evidence in the record to support such a finding. This, of itself, would not defeat a recovery by plaintiff, unless it *Page 815 be found that the negligence of the driver was the sole proximate cause of the accident without negligence on the part of the defendant which proximately caused or contributed to the happening of the accident, or that it was the sole proximate cause of the accident, notwithstanding the negligence on the part of the defendant, if any. Lewis v. LaNier, 84 Colo. 376,270 P. 656. These questions were properly submitted to the jury by appropriate instructions.
"The question of whether or not plaintiff was guilty of negligence which proximately caused or contributed to the happening of the accident was properly submitted to the jury by appropriate instructions. It is not contended by appellant that the negligence of the driver was or could be imputed to plaintiff. Plaintiff was riding in the rumble seat with the top of the car partly, at least, obstructing his view of the road. A guest is not charged with the same degree of attention to the road as is a driver. Evidence of the speed at which the car was driven was in conflict. Plaintiff was familiar with the road and had knowledge of construction work being done in the general locality. He testified he did not see or know of the particular obstruction at the place where the accident occurred. He was not required to warn the driver until something challenging had brought possibility of danger to his attention. Clearly it was for the jury to say whether or not he failed to do what an ordinary prudent person, being a guest in the car, would do under the circumstances and, if negligent, to determine whether such negligence was a proximate or contributing cause of the accident."
And, in that opinion, the Court also said: "For the purpose of this decision the legal sufficiency of the barricade must rest on the evidence produced on behalf of the plaintiff. This shows that the barricade extended across the *Page 816 entire paved highway, was 5 or 6 feet high, composed of two or three planks fastened to uprights, and that two lighted red lanterns were hanging on the barricade, one on each side of the highway, and that there was a detour sign on the barricade. The lights were seen by Butterfield, the driver of the car, when approximately 600 feet up the road. Another of plaintiff's witnesses testified he saw them when 150 to 200 feet away.
"If the barricade, sign and lights as described by these witnesses were sufficient in law, then the verdict should have been directed or a non-suit granted. Respondent argues not only that the barricade itself was insufficient, but that it was located so close to the cut in the pavement that the driver could not stop his car after seeing and striking the barricade and before running into the ditch. It is well settled that such sign or obstruction is required to be only a warning and is not required to be at such location or of such size and strength as to effectively prevent a car driven against it from going through it and into the excavation beyond. City of Amarillo v. Rust (Tex. Civ. App.) 45 S.W.2d 285."
And then the Court said: "The rule with respect to when the Court may, on undisputed evidence, determine the sufficiency of a barrier placed on the street as a warning, is well stated in Thomas v. City of Legington, 168 Miss. 107, 150 So. 816, 817. The court, while holding a barrier placed in front of an excavation was insufficient as a matter of law, stated the rule as follows: `As a general rule the question as to whether or not signals or warnings against existing defects in a street are sufficient is one for the determination of the jury. Such is the case where the evidence is conflicting or is such that reasonable minds might arrive at different conclusions; but where the *Page 817 evidence is undisputed and only the inference of negligence can be drawn from the proven facts as to the nature or character of the signals or barriers erected as a warning of a defective or dangerous condition in a street, the question of negligence in respect to the particular defect or obstruction or warning signal is one for the court.'
"We hold to the view that the barricade and sign with red lights burning as shown by plaintiff's witnesses were sufficient warning to meet the requirement of due care on the part of the contractor. Reasonable men can not well differ in reaching this conclusion. The court should have withheld the case from the jury and directed a verdict. Cases tending to support this view are the following: Cora v. Borough of Kingston, 300 Pa. 159,150 A. 384. Tagge v. City of Roslyn, 51 Wash. 258; 98 Pa. 668; Inman v. Patterson, 232 A.D. 379, 249 N.Y.S. 596; Butcher v. City of Racine, supra; Carlson v. City of New York, 150 A.D. 264, 134 N.Y.S. 661; Mroczek v. Smolemski, 216 A.D. 264, 214 N YS. 668."
The above quoted statements are supported by ample authority and I think correctly state legal principles.
ELLIS, P.J., and TERRELL, J., concur.