98 F.2d 532 | 5th Cir. | 1938
This is a suit by appellees, Mrs. Pearl Reed, widow of Glenn V. Reed, on behalf of herself and two minor children, to recover damages for the death of the husband and father, alleged to have been caused by the negligence of appellants, W. G. Wetmore, Inc. and F. S. Neely, in not maintaining proper signs, danger flags, barricades and warning lights on a bridge and road they were constructing. Defendants pleaded the general issue. There was joint and several judgment against both defendants. The assignments of error all run to the refusal of the district court to direct a verdict in favo,r of defendants. The case presents mainly a question of fact. The following material facts appear from the record.
In 1936 a new .highway was under construction running from the end of Main
There was evidence tending to show that the barricade was about the same color as the road and any one approaching it in an automobile could not see it until close upon it. If so, the failure to indicate its presence by a proper light to anyone approaching it at night could be negligence.
Since error is not assigned to the charge we must assume the district court correctly instructed the jury as to the law of Mississippi. We consider there was sufficient evidence to go to the jury on the question of negligence on the part of Wetmore. A different situation is presented as to Neely. Neely had nothing further to do with the construction of the road. So far as his work was concerned the road was safe. His duty to warn and protect the public against any danger incident to his work was at an end before the accident. Herring v. Planters’ Lumber Co., 169 Miss. 327, 153 So. 164; 45 C.J. 884, § 320, Negligence. It would be a matter of pure speculation for the jury to find that Neely was guilty of any negligence that could have been the proximate cause of the accident or contributory thereto. The judgment against him is not supported by any substantial evidence.
On the appeal of Wetmore the judgment is affirmed. On the appeal of Neely the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.