On the first appeal the case was treated as though the complaint declared as for breach of duty growing out of the contract between the state and the defendant, which imposed on the defendant the duty to maintain lights on the barricade.
So treated, the question as to how far the barricade could be seen by a person in an automobile, other than the parties in the Dye car, was held immaterial, for the reason that the contract fixed and imposed the duty to maintain lights on the barricade and the failure to do so was negligence.
But on the second trial the case was tried on a different theory, and correctly so, because the complaint does not declare as for breach of duty growing out of the contract. On that trial the court charged the jury: "There is evidence here of a contract between the defendant and the State Highway Department, and you can look to that contract in determining as to the right of the defendant on the road at that point in regard to the erection of the barricade. But I will say to you, gentlemen, that the breach of duty charged in the complaint against this defendant is limited to the breach of duty charged in the complaint, and you cannot look to this contract, gentlemen, to increase or enlarge the duty which the defendant owed to the public using that public road. In other words, the breach of duty charged in this complaint is negligence, the negligent failure to put lights on this barricade, and that is the question here for you to decide, and not any other duty that may be set out in any contract between the State and the defendant. Now, gentlemen, the plaintiff charges the defendant here with negligence. A simple definition of negligence is this: The doing of that which a reasonably prudent person would not do under the same circumstances and conditions as shown by the evidence in the case, or the failure to do that which a reasonably prudent person would do under the same circumstances and conditions as shown by the evidence in the case. So the duty, so far as this case is concerned, that this defendant owed to the plaintiff riding on that highway was the duty to use the care which a reasonably prudent person would have used in regard to placing lights or warning signals on this barricade," etc.
This broadened the scope of the issue, making material the inquiry as to the distance the barricade could be discovered by one using the highway at or about the time of the alleged injury. This, to aid the jury in determining whether the failure to maintain lights on the barricade was or was not negligence.
The witness Blalock testified for the plaintiff that he passed the barricade on the night of plaintiff's injury; that there were no lights on the barricade; that he was driving a Ford car, and that it was night. On cross-examination *Page 129 he testified that the road was straight for several hundred feet before reaching the barricade; that as he approached he could see it, but "not very far." The defendant, on cross-examination of this witness, in view of the issues and the circumstances developed, had the right to show, if it could, how far the barricade could be seen, not to show a duty owing to the witness, but to aid the jury in determining whether or not the failure to maintain lights was or was not negligence.
We are of opinion that the other point upon which the case was reversed needs no further statement.
Application overruled.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.