I am unable to subscribe to the views of the majority with respect to the nonliability of defendant Roscoe.
In considering this question we must keep in mind the well-settled rules that the verdict of the jury will not be set aside if there is any substantial evidence to support it, and that the evidence, when conflicting, must be viewed in the light most favorable to the prevailing party. On motion for nonsuit the evidence must be taken to establish whatever it fairly tends to prove. (Boyd v. Great Northern R. Co., *Page 357 84 Mont. 84, 274 P. 293.) And when defendant does not stand on his motion, but introduces evidence on his own behalf, all of the evidence in the case, including that offered by defendant, must be so viewed. (Watterson v. Hill, 84 Mont. 549, 276 P. 948.)
The evidence shows that Roscoe built the culvert. It was completed on August 31, but not yet accepted. Roscoe was personally at the culvert on September 1, spending two and a half hours there. He came from Glendive that morning, passed to the west of the culvert on the detour, then returned to a point opposite the culvert, crossed the railroad track, and went to the culvert. He must have seen the conditions as they existed at the point of the detour when he passed there on the morning of September 1, as did other witnesses who traveled the same route at about the same time. He knew, or should have known, that the dirt would not be filled in until the concrete dried, which, according to some of the evidence, takes about twenty days. Adams, whose duty it was to fill the dirt around the culvert, testified that "we have to wait a certain length of time. A lot of times twenty or twenty-one days after she is poured." Further, he said: "I filled as soon as after the concrete or right after the concrete was ready to be filled. * * * Well, I filled that right close as soon as it was ready to be filled; I don't know the exact day, but right soon. I was waiting for notice to fill that, when it was ready."
The dirt was not filled in until after the accident. The fact that the forms had been removed is wholly immaterial. The jury had the right to say from this evidence that, when the accident occurred, the concrete was not ready to have the dirt filled in.
I fail to see how it can be said that the evidence does not rise to the dignity of creating a conflict; and the issue as to where the preponderance of the evidence lies is one for the jury.
Also, Roscoe himself said: "I started this work about August 22d 1928; 22d to the 24th." The employee Lenhart said: "We finished pouring the concrete about three days after *Page 358 we started." If it only took seven days for the concrete to dry, as some evidence tends to show, and if the work was started on August 24, the pouring was not completed until the 27th. Seven days thereafter would be September 3, or one day after the accident.
The evidence, it should be remembered, should be viewed in the light most favorable to the prevailing party. Thus viewing it, the issue as to when the concrete was sufficiently dry to permit the dirt to be filled in was plainly one for the jury, and, having found for plaintiff on substantial evidence, its verdict should not be disturbed on this issue.
In the process of construction of the culvert large trucks were used by Roscoe and his men in hauling materials to the culvert. In doing so the new grade was used from the point of the detour part way to the culvert. There is some evidence that before the culvert was built, cars were able to get over the new road and through the excavation in which the culvert was later placed. The barricade which Adams said he erected was taken down by Roscoe and his men sufficient to permit the trucks to pass, and tracks were made by the trucks which helped to give the road past the detour the appearance of being in general use. The barricade was so constructed that it was easily and readily moved. Adams had completed the grading work about August 1, had moved his outfit, and was working with his crew some four miles west of the place of the accident at the time Roscoe was building the culvert. Roscoe and his crew, during the time the culvert was being constructed, were the only ones working on this particular piece of road. The jury had a right to find that Roscoe should have known that there was no one looking out for the safety of the public. Roscoe's employee, Lenhart, testified: "I couldn't say between the 15th and 20th day of August, when I was at work there, if there was anybody look out for the safety of the public at all."
The character of the barrier at the point of the detour at and prior to the time of the injury can best be shown by relating what the witnesses said. Defendants' witness Aaby, *Page 359 an employee of the highway commission, said: "During the times I went by there and looked to see if the barricade was there I did have to arrange it or put it back several times. The poles and the posts would be slightly moved back or moved over so as to give more room in the north side of the road. * * * There was some space left by the barricade around which traffic or anybody could go. I should judge about four feet of space was left on the road. I remember there being something across there at times, yes. * * * The barricade was in what I would call good condition; I wouldn't do anything to it. I would judge about four feet of space was left on the road there, the same as I left it. * * * A great many times I would find no barricade there and I was afraid an accident might happen. That is the reason I found it down sometimes and not in place. I didn't — I didn't pay attention. I couldn't say how many times it was I had to arrange that barricade so it would completely stop cars from going off the road. There was always a gap of four feet on the north side where there wasn't a completed barricade. That four-foot space was sufficient for a car to get by if they went over the edge of the road. * * * I guess I did find that space on the north greater than four feet; sometimes it varied. If those trucks moved the logs they were supposed to put them back; certainly after each trip. I don't know if they didn't do it; I didn't watch them. I didn't know if it would take more than four feet for them to get by. I don't know what this four-foot space was left there for. I don't know if it was to make it convenient getting in there."
Adams, testifying to the kind of barricade that his men placed at the detour, said there was "wire stretched across the entire road, the entire width. I never went back there only — that was entirely shut off, that new piece of road. I did see it afterwards when the wire was gone; I seen it when the wire was gone. * * * The road was all closed but one side of the road where they could pass down on the shoulder, on the right-hand side. That would be the north side. The *Page 360 shoulders of this road, just before the accident, had been kind of pushed down with the cars over it; it wasn't straight up and down."
Defendants' witness Brittain, an employee of the state highway commission, said: "There was a wire thrown from each side when they first opened the road up where it was stretched across. That was the wire that was across there in the first place before they ever opened it up. * * * The fence was right there before the new projected road was that I was speaking about. That was afterwards across where the road was, that was closed up. * * * Someone took the fence down that I saw was up there at first. I don't know who took it down. The barricade remained at it was. The one post on the north side would be moved off the road part of the time it was there. That was arranged that way so that they could get by there if they wanted to; so they could go into the Gifford place. * * * When the northernmost log was moved aside a vehicle could get by, a car or other vehicle, by running a little over the shoulder. And when the wheel ran over the shoulder the vehicle would be leaning a little to the north; to the outside. The grade there was soft. A car could not go around that barricade rapidly. * * * There was a number of times I stopped and straightened the barricade up. I found it disturbed. Logs would be rolled around one way or the other; the sign was turned over two or three times. * * * I was on the grade myself setting stakes * * * and two cars saw the car setting there, and one came through." As to what he saw after the accident, he said: "I did notice the barricade when I went out there. There was one post laying on the south side of the road and the rest of the barricade was in the ditch. One of the small posts was lying on the south side; everything else was in the ditch. Everything else was clear so I could get through. This post lying on the south side — there wasn't more than three feet of the post in the road. The road was almost clear. The `Road Closed' sign was in the ditch; the ditch was on the south side of the road. Mr. Adams and I *Page 361 put the barricade up and stretched some wire up. * * * It is true that at about 8 o'clock that night on September 2nd, after the accident, Adams and I came to this place of construction and then put up a barricade. I don't know whether Flossie Grant was right there at that time — I know who she is. She did say about that time, `It is about time you are putting up a barricade.' I then put up a wire."
Defendants' witness Woodward, an engineer for the highway commission, testified: "This fence, by the way, was after, when Mr. Adams moved away, we put the barbed wire fence across the road and hung red flags along this point and we put some streamers so the people could see the barbed wire and wouldn't run into it. * * * I came down there about a week after this fence was placed across the road with the red flags on it and it had been removed."
Plaintiff's witness Jundt traveled the road in the afternoon of the day of the accident, and said there was then no barricade, sign or detour warning of any kind.
August Albrecht, a witness for plaintiff, testified to the same effect as of the afternoon of September 2, when he had occasion to travel the road west of Fallon.
Eamon testified for plaintiff that he was called to the road in the afternoon of September 2 to assist Jundt, who, in attempting to back away from the culvert, got off the grade. He said there was no barricade sufficient to warn people not to travel the road to the culvert. He said there was a log lying partly across the road, but it could not obstruct any one from traveling on the grade. He was corroborated by Henry Meidinger, who also assisted Jundt.
J.C. Jensen passed the place where the detour left the grade on many occasions during the week preceding the accident, and saw no adequate detour signs. He said he saw two or three posts and part of a telephone post and stick. He stated: "There was nothing permanent to that obstruction."
R.H. Wollin, principal of the Custer county high school, traveled the road on either Friday or Saturday preceding the accident (the accident happening on Sunday), and said there *Page 362 were no detour signs or any signals or warnings of any kind with reference to the detour. J.E. Mutchler, instructor in mathematics in the Custer county high school, traveled the road on the day before the accident, and said there was no detour sign at that time.
According to all the evidence, there was no warning sign at the culvert. This, of course, made the culvert extremely dangerous, unless warning signals were maintained at the detour to advise people not to travel the new grade.
The evidence was ample to show that on September 1, when Roscoe spent two and a half hours inspecting the culvert, the road leading thereto from the east presented the appearance of being well traveled, and that, unless warning signs were maintained, the public, unfamiliar with the conditions, might be misled by its appearance into believing that it was open for travel.
The jury was warranted in finding that the barricade which was provided was not reasonably adequate and sufficient under the circumstances. It was for the jury to say under the evidence whether Roscoe knew, or in the exercise of reasonable care should have known, that the warning or detour sign was not of sufficient permanency to operate as an adequate safeguard to the public, and that defendant Roscoe, who built the culvert and thus created or greatly enhanced the danger to the public, did not exercise reasonable care for their safety under the circumstances. He knew, or should have known, that there was no one else in charge of that portion of the highway when he finished pouring the concrete who would guard the traveling public. In legal contemplation he was the one in charge of the culvert until it was accepted. There being sufficient evidence to warrant the jury in finding that Roscoe should have known when he last saw the culvert that there was no adequate detour sign to warn the public not to travel the new grade, the conclusion must follow that it was negligence, under the circumstances, to leave the work without other warning signs being given, either at the culvert or at the point of detour. *Page 363
"What is ordinary care in a case of extraordinary danger would be extraordinary care in case of ordinary danger, and what would be ordinary care in case of little danger would be much below that in case of great danger." (Thompson on Negligence, 152, quoted with approval in Liston v. Reynolds, 69 Mont. 480,223 P. 507.) Without adequate detour signs to warn the public not to travel the road to the culvert, the latter presented a situation of extraordinary danger. It was literally a death trap. The verdict of the jury indicates that it was of opinion that defendant Roscoe did not exercise proper care commensurate with the danger. I think there was sufficient evidence to warrant the jury in so believing.
Schwieger testified that, according to his agreement with Roscoe, the latter "was to go in on the job and build the structure according to my original contract with the State Highway Department." Roscoe enhanced the danger of the road by putting in the culvert. The danger, it is true, would not have existed if the road had not been held out as ready for travel. Adams, who had the contract for the grading, was not in actual control of that part of the highway when Roscoe built the culvert. This, defendant Roscoe should have known. Roscoe, as above stated, was the only one working on this part of the highway at the time he built the culvert. He could not create or enhance the danger to the public without taking necessary precautions for their safety. He knew, or should have known, that the dirt would not be filled in at the culvert until the concrete was dry. The work was not yet accepted when he left it on September 1, nor at the time of the accident.
While it is true that, where service is restricted to a single act or transaction, the relation of master and servant terminates upon the completion of the work (Wilkinson v. Myatt-DicksMotor Co., 136 La. 977, L.R.A. 1913E, 439, 68 So. 96); yet where, as here, the work had not been accepted by the employer, and where it required time to dry it cannot be said that the work was fully completed on September *Page 364 2. Nor is this case the same as that of Donovan v. Oakland Berkeley Rapid Transit Co., 102 Cal. 245, 36 P. 516, relied upon by defendant Roscoe, for there the employer was actually present when the work was performed by the employee or independent contractor and exercising control over the premises, and, in legal contemplation, accepted the work. (See 14 R.C.L. 86, and Mansfield Construction Co. v. Gorsline, (Tex.Com.App.) 292 S.W. 187, where the Donovan Case is referred to.)
The importance of an acceptance of the work by the employer is alluded to in the case of Mansfield Construction Co. v.Gorsline, (Tex.Com.App.) 288 S.W. 1067. It is true in the last-cited case the contract specifically provided that the work shall be accepted when fully completed and finished to the satisfaction of the county engineer. But here the evidence shows that the work was that of the respective contractors until accepted, and that Adams, who was chargeable with the duty of filling in the dirt, had not been notified of the completion of the work prior to September 2. In the Mansfield Case, notice had been given and the work accepted.
It is of no consequence that Roscoe may not have been in legal contemplation in control of the highway. The test is: Did he owe a duty to the public, including the plaintiff? "Generally speaking, one is responsible for the direct consequences of his negligent acts whenever he is placed in such a position with regard to another that it is obvious that if he does not use due care in his own conduct he will cause injury to that person. * * * If one shall make an excavation so near the line of the highway that one lawfully making use of the highway might accidentally fall into it, his duty to erect guards as a protection against such accidents is manifest, and he will be responsible for injuries occasioned by his neglect to do so." (Cooley on Torts, 4th ed., sec. 478.) And I perceive no difference in principle as regards the duty to erect guards between a case where the dangerous excavation is on or near a highway in regular use as such and a situation as here, where it existed on what the traveling public might *Page 365 reasonably be misled by appearances into believing was the highway. (Compare Furlough v. Nash County Highway Commission,195 N.C. 365, 142 S.E. 230.
If it be assumed, as stated in the majority opinion, that Roscoe and his men replaced the barricade removed by them to permit their trucks to pass, liability still exists, if the jury found from the evidence, as it was warranted in doing, that the barricade was so flimsy and unsubstantial as not to operate as an adequate safeguard to the public.
The suggestion that "the requirement of the erection of a barrier and the closing of the road presuppose that beyond the barrier lies a danger zone," as stated in the majority opinion, was the exact situation here. It was a danger zone beyond the point of the detour. There was a death trap hidden from the view of those traveling the new road, until too close to it to avoid its dangers.
I think the learned trial judge properly submitted the case to the jury as to both defendants, and that the judgment against both should be affirmed.