Wunderlich v. Franklin

HOLMES, Circuit Judge. This appeal is from a judgment for appellee in an action for the wrongful death of her husband and intestate, Horace Franklin. Appellants contracted with the state of' Alabama for the construction of a road from the town of Opp to the town of Andalusia, both in said state. Under this contract, they obligated themselves to provide, erect, maintain, and finally remove all necessary barricades, suitable and sufficient lights, danger signals, and signs; to provide a sufficient number of watchmen; and to take all necessary precautions for the protection of the work and the safety of the public. As the construction of the road progressed, it was opened at times to the use of the public, such use being favorable to the work in that it aided and accelerated the packing and settling of the fills and the curing of the fresh earth for the foundation. When the final operation of putting the surface on the road began, it was necessary to prevent any use of it whatever, because such use rendered the foundation unsuitable for surfacing, and necessitated a repetition of what had previously been done. The work of surfacing was done by sections, and appellants experienced great difficulty in preventing traffic thereon. Barricades were removed or destroyed by trespassers, and warning lights and signs were disregarded. In one instance, a barricade of heavy wooden timbers, fastened to posts set in the ground, with heavy chains holding the timbers in place, was removed by loosening the chains and dragging the timbers to one side. Appellants caused a barrier to be erected across the center span of a bridge, which formed a part of the highway, by stretching heavy wire cables from one side of the bridge to the other and making them fast with cable clamps, or U-bolts, a fastening which would not allow the cable to give or slip, and which could not easily be removed. This barrier was erected to protect a section of the road beginning at one end of the bridge. Brush and shrubs were interwoven in the strands of the cable, as a warning to any one who might approach, but no lights were placed at or near the barrier. Primary barricades were erected and maintained at each end of the road and at all entrances thereto, and each of these barricades bore signs advising the public that the road was closed, and was illuminated by warning signs at night. Horace Franklin maintained his home in Andalusia, which place he left about five days before his death and one week after the erection- of the cable barricade mentioned above. He was employed as a truck driver for an oil company, and,- after spending the week-end with his family, drove to Opp in his truck to resume his duties to his employer. On this trip, he undertook to follow the new highway, but was prevented from doing so by the barricades which had been erected. On the night of his death, he left Opp to drive to Andalusia, and his dead “body was found the next day at the cable barricade mentioned above. When found, his head had been severed from his body and was lying under the top of the steel cab of the truck he was driving, both having been torn off after the truck had collided with the lower strands of cable, bending the members of the bridge to which they were fastened, and passing underneath, carrying the headless body to a point about forty feet beyond, where the -truck left the highway and capsized. On the record here, it is conceded that the deceased was a trespasser on the highway and was guilty of contributory negligence when he met his death. If recovery is to be allowed, liability must be predicated upon wanton negligence on the part of appellant in erecting the cable barrier, and failure to p'rovide lights at night. In determining liability, we are bound by the decisions of the Supreme Court of Alabama. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. A review of the numerous Alabama decisions does not disclose any departure from the concept announced by Mr. Justice Bigelow, in Sweeny v. Old Colony & N. R. Co., 10 Allen, Mass., 368, 87 Am.Dec. 644, that “all the cases *■ * * in which a party is sought to be charged on the ground that he has caused a way or other place to be incumbered or suffered it to be in a dangerous condition, whereby accident and injury have been occasioned to another, turn on the principle that negligence •consists in doing or omitting to do an act [167] by which a legal duty or obligation has been violated.” However, the rule announced in that case, barring recovery by a trespasser for an injury occasioned by a dangerous condition of the premises, is avoided if it can be shown that the condition was brought about by wanton negligence as defined in the Alabama decisions. We have found no case distinguishing between active and passive negligence, ■ or a dangerous or latent condition of the premises and the operation of a force in motion. If the element of wantonness is found to he present, liability is imposed without regard to the wrongful acts of the injured person or his contributory negligence. Alabama Great Southern R. Co. v. Guest, 144 Ala. 373, 39 So. 654; Alabama Great Southern R. Co. v. Williams, 140 Ala. 230, 37 So. 255. In defining wanton negligence, the Alabama courts emphasize the necessity that the lack of care and disregard of probable consequences be so great that, in its ethical aspects at least, it be analogous to a will or intention to produce the result. A clear distinction between willful and wanton injuries is maintained on the basis of distinct elements, but the cases do not lose sight of the fact that, in holding liability for wanton negligence, they are treating the wrongdoer as if he had actually intended the result. Thus in Feore v. Trammel, 212 Ala. 325, 102 So. 529, the problem is dealt with in the following language [page 533]: “Be it understood that ‘intentional injury’ and ‘wanton injury’ are ‘moral equivalents,’ but ‘their elements are different, and proof of the one would not suffice of proof of the other.’ Birmingham R., L. & P. Co. v. Ryan, 148 Ala. 69, 41 So. 616; Alabama G. S. R. Co. v. Ensley Transfer & Supply Co. [211 Ala. 298], 100 So. 342. If willful injury is charged, it must be shown that it was ‘intentionally and designedly’ done. Adler v. Martin, 179 Ala. 97, 109, 59 So. 597, and authorities. In Birmingham Ry. & Elec. Co. v. Bowers, 110 Ala. 328, 20 So. 345, it is declared: “ ‘Where a person, from his knowledge of existing circumstances and conditions, is conscious that his conduct will probably result in injury, and yet, with reckless indifference, or disregard of the natural or probable consequences, but without having the intent to injure, he does the act, or fails to act, he is guilty of wanton negligence. A purpose or intent to injure is not an ingredient of wanton negligence, and if either of these exists, and damage ensues, the injury is willful.’ “This distinction has since been observed by this court. Southern Ry. Co. v. Wooley, 158 Ala. 447, 48 So. 369; Merriweather v. Sayre Min. & Mfg. Co., 161 Ala. 441, 49 So. 916; Merrill v. Sheffield Co., 169 Ala. 242, 53 So. 219; Louisville & N. R. R. Co. v. Calvert, 170 Ala. 565, 54 So. 184; Birmingham R., L. & P. Co. v. Drennen, 175 Ala. 338, 57 So. 876, Ann.Cas.1914C, 1037; Adler v. Martin, 179 Ala. 97, 59 So. 597; Vessel v. Seaboard A. L. Ry. Co., 182 Ala. 589, 62 So. 180; Shepard v. Louisville & N. R. R. Co., 200 Ala. 524, 76 So. 850, and authorities. “It follows from the decisions that to establish a willful or intentional injury the proof must establish the same was inflicted designedly and intentionally; to constitute wantonness, that the party charged, or his servant acting for him in the premises, was conscious of the conduct which caused the injury, and conscious, from his knowledge of the existing conditions, that injury would likely or probably result from his conduct or omission to act, and with reckless indifference to consequences he consciously and intentionally did the wrongful act or omitted to do or discharge some known duty in the premises which produced the injurious result declared for in the complaint. Shepard v. Louisville & N. R. R. Co., 200 Ala. 524, 76 So. 850; Alabama Power Co. v. Conine, 210 Ala. 320, 97 So. 791; Birmingham R., L. & P. Co. v. Cockrum, 179 Ala. 372, 60 So. 304.” See, also, Sington v. Birmingham Ry., L. & P. Co., 200 Ala. 282, 76 So. 48, and cases cited. Thus, in determining whether or not appellants are liable, we are concerned with the state of mind of their agent and foreman at the time when the barricade was erected and while it remained in place. Authority to close the road was given by the contract with the state and section 1397 (34) of the Alabama Code of 1928. It is contended that appellants’ agent and foreman acted improperly in directing that cables be stretched across the bridge and be made secure thereto; that both the location and type of barricade were improper. As to the location of the barrier, it does not seem to be material to this case case whether it was placed on a bridge, an embankment, or within a cut. The death of appellee’s intestate occurred when his head was severed from his body by the [168] strand, and the ensuing plunge of the truck from the embankment could not aggravate his injury. There is nothing to indicate that it would have been more easily seen at any other location. The duty of the deceased to exercise due care and caution for his own safety was just as great while he was crossing the bridge as while he was travelling on level ground. Thus, appellants’ agent had a right to assume that any one trespassing on the highway would be on the lookout for obstructions at this point, as well as any other. As to the type of barricade, the chief complaint is that the cable was securely fastened with clamps, or U-bolts, so that it could not give or slip. The right to erect a barrier presupposes that the barrier, when erected, will be one which will turn back traffic.’ The record here discloses that the deceased was killed because the truss members and railing of the bridge, to which the cables were attached, gave way, allowing the truck to pass through. Whatever may have been the result if the truck had struck an immovable object at the center of the bridge, it clearly appears that Franklin’s head would not have been sheared off along with the top of the cab as the truck passed under the cable. But be that as it may, no one could complain.that the barricade was too substantial or of a particular type, since these are matters within the discretion of the contractor, his sole duty being to provide suitable warning after the barricade is erected. Appellee insists that liability should be predicated upon the failure of appellants to provide warning lights for the barrier at night. It is not contended that the provision in the contract requiring lights at barricades confers any greater right upon the public, or imposes any greater duty upon appellants to the public, than at common law. In determining what notice of conditions and circumstances appellants and their agents are chargeable with, it is of probative value and may be considered in determining their state of mind. It may be conceded for the purposes of this case that appellants are chargeable with simple negligence in not providing lights for the barrier. Carter v. Franklin, 234 Ala. 116, 173 So. 861. The question remains, did their action or failure to act, in erecting and maintaining the barrier without warning lights, attain that degree of culpability attributable to an-intentional injury under the laws of Alabama? We have seen that barricades were erected with proper signs and lights at all entrances to the highway. These were sufficient to put any one entering thereon on notice that the road was under construction and that, if they traveled on the highway, they must expect to encounter conditions different from what otherwise might be expected. Thus, due care and caution for their own safety required that travelers on the highway maintain constant vigilance for such obstruction and defects as might exist in the course of the construction. It is immaterial whether the lighted barriers were down at the time the deceased began his journey, or that he may have entered the highway at some unusual and unexpected place, thereby failing to receive the warning provided. The wantonness of appellants’ conduct and that of their agents depends, not upon what the deceased knew, but upon what they knew or should have known. The evidence is uncontradicted that lighted barriers were provided, and that they effectively gave notice that the road was under construction. It is also uncontradicted that the view of the cable barrier at which the accident occurred, with the bushes and branches interwoven between the strands, was unobstructed for more than one'thousand feet in each direction. Aside from common prudence the statute laws of Alabama require that motor vehicles driven on the highway at night be equipped with headlights, and forbid driving at a reckless or excessive rate of speed. 'While these matters do not afford a defense for wantonness, once it is found to exist, they must be taken into consideration where the facts and circumstances are relied upon to establish its existence. Thus, it would not be wanton to assume that a traveler would not proceed on the highway without lights or at an unreasonable rate of speed. Neither would it be the moral equivalent of intentional injury to assume that a reasonable rate of speed under such circumstances would be one which would allow a driver to stop within the distance in which an obstruction would become plainly visible in the light from the vehicle. The case against appellants is that they failed to foresee that persons wrongfully on the highway would not exercise care for their own safety. It is not wanton negligence to assume that another will exercise due care and caution for his own safety. It has been stated in Alabama Great Southern R. Co. v. Hall, 105 Ala. 599, 17 So. 176, 179: “Before one can be held guilty of ‘willful’ or ‘wanton and reck [169] less negligence’ the facts must show either that the party knew his conduct would inflict injury, or the facts must show that, on account of the attending circumstances, which were known to him, or a knowledge of which he was chargeable with, the inevitable or probable consequences of his conduct would be the infliction of injury, and with reckless indifference to the consequences committed the act or omitted to perform his duty. Georgia Railway Co. v. Lee, 92 Ala. 262, 9 So. 230; Louisville Railroad Co. v. Webb, 97 Ala. 308, 12 So. 374.” See, also, Southern R. Co. v. Benefield, 172 Ala. 588, 55 So. 252, 35 L.R.A., N.S., 420; Central of Georgia R. Co. v. Corbitt, 218 Ala. 410, 118 So. 755; Alabama Power Co. v. Gooch, 221 Ala. 325, 128 So. 793; Allison, etc., Co. v. Davis, 221 Ala. 334, 129 So. 9; Buffalo Rock Co. v. Davis, 228 Ala. 603, 154 So. 556; Alabama Power Co. v. Smith, 229 Ala. 105, 155 So. 601. The conclusion reached above renders it unnecessary to consider the questions presented as to the sobriety of the deceased on his departure from Opp, and whether or not he expressed an intention to demolish the barrier. For the reasons stated, it appears that the request for an instructed verdict should have been granted. The judgment of the district court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.