As a part of its postwar rehabilitation program, the Louisiana Highway Department made a contract with T. L. James & Company, Inc., for patching, widening and resurfacing approximately 17 miles of the major, east-west arterial highway, U. S. 80. Actual work was in active progress on a 6-mile portion in the east end of the projeсt. At a point further west and 6 miles beyond the locale of any actual work, there was a bad sunken, broken place in the concrete highway just to the right (north) of the center stripe. This was from normal attrition from long hard use with inadequate maintenance during the war years and, typical of general deterioration, was a сondition which the contract project was to remedy.
The plaintiffs in their suit against the Contractor 1 *claimed that this hole brought about the head-on collision between the Bounds’ vehicle, headed west, and Sergeant Rockovich’s eastbound car, which took place on the south (Rockovich) side of the road. The District Court granted 2 a judgment for the defendаnts notwithstanding the verdict, Fed.Rules Civ.Proc. rule 50(b), 28 U.S. C.A., on the dual ground that the contract imposed no duty which was violated and the plaintiffs failed to prove that negligence, if assumed, was a proximate cause.
*804 Analysis of the case makes it unmistakable that plaintiffs imperatively require the contract between the Highway Department and Contractor — not only to create a relationship out of which duties might spring but, decisive here — to create the very duties themselves. The facts are undisputed that this highway defect was in no way caused or brought about by Contractor. It had existed for a considerable time and had in no way been altered or magnifiеd or changed by Contractor’s work. Nothing which Contractor was doing in the 6-mile work area to the east affected this defect or produced from it a peril to the traveling public any different from that which it would have presented a day, or a week, before the 17-mile project contract commenced or hаd it, by chance, been located farther west outside of the boundary limits of the 17-mile project.
That being so, gauged by the standards of reasonable care
apart
from the contract, what obligations to the traveling public were imposed? None, we think, either to warn or to repair. Of course, in the performance of its contract, the Contractor must carry on the work with reasonable prudence and members of the traveling public are obvious beneficiaries of that requirement. Failure to heed that standard imposes liability on a Contractor where what it has done, or not done, has had instrumental effect in creating the condition out of which the danger comes. Owens v. Fowler, 5 Cir.,
But here the Contraсtor has done nothing. Prudence, as such, does not tell it to do something. If it had to mark the defect, warn against it, temporarily repair it or build up the shoulder for a suitable by-pass, the duty came alone from the contract. But nonperformance (nonfeasance) of such a contract duty owing by the agent to his principal under a contract does not give rise to tort liability against that agent, and, of course, the agent has no contract liability to a third party not in privity. 38 American Jurisprudence, Negligence, § 21, “A plaintiff in an action for negligence, who bases his suit upon the theory of a duty owed to him by the defendant as a result of a contract must be a party or privy to the contract; otherwise, he fails to establish a duty toward himself on the part of the defendant, and fails to show any wrong done to himself.” 27 American Jurisprudence, Independent Contractor, § 52, “ * * * in eases of injury to persons who are not parties to the contract, the plaintiff cannot maintain thе action on the covenants thereof; the liability, if any, in such a case must be founded on negligence.” Where the duty springs from the contract, is a creature of it, it affords no basis for tort liability. Council v. Dickerson’s, Inc.,
This makes an excursion into the contract terms and their interpretation unnecessary, although the process makes the result doubly sure. The plaintiffs take certain contract 3 terms requiring contractor to maintain traffic and adequate warning devices as the basis for their further claim that this established a standard of care, created duties owing to them as members of the public, the
breach of which would cast contractors in liability. Gaining momentum from factual elaboration, the claim then expands to the contention that wherever, within the project limits, long-standing, pre-existing defects of the highway create hazards to travelers permitted to use the roadway, the contractors had the duty of using reasonable care to mark, warn, barricade, temporarily repair or make suitable improvisations to make it safe for traffic. At least, they say, the jury could have so construed the contract.
But the contract, in writing, with no factual controversy for jury determination, was for the court to construe, Sea Insurance Co. v. Johnston, 5 Cir.,
■ [7] So viewed, we cannot believe that Contractor intended to take on, or that the Highway Department intended to impose, these far-reaching obligations. The obligation to “provide for and maintain through and local traffic at all times during the construction of this project” was to make certain that the highway would not be closed during the work. This was, of course, of great importance in determining the proposed plan for doing the work and its effect on the Contractor’s estimate and bid. It further meant that as the work was being done with the traffic flow left open, the Contractor should exercise due care, by suitable warning devices, temporary or improvised by-passes or the like, to afford reasonably safe passage to the traveling public. Whenever, then, the contractor’s work, completed or in progress, gave rise to a likely hazard not otherwise existing, it would impose the burden of these contract obligations on the Cоntractor. Such provisions in the contract and Standard Specifications as those relating to keeping one-half of the roadway and all intersections open, construction materials off of traveled portions, specifying intervals (1320 feet) to be kept between work simultaneously done in one lane, the machining and dragging of the subgrade and newly laid materials, and the like, furnish intrinsic proof that the maintenance and the warnings related to those portions and the adjacent areas of the project on which the Contractor was, or had been, engaged in actual operations. Conversely, with respect to portiоns not yet worked on, the Contractor had no contractual duty of maintenance, repair, or warning. As to any such portions, its duties were those, and only those, imposed generally by law.
If there is any difference, see United States v. Hull, Prosser on Torts, supra, in the significance of a failure to perform the contract obligation to maintain, i.e., repair, and that for failure to warn the traveling public, we think there is no basis for finding an intention that Contractor was undertaking an obligation to warn of longstanding defects and dangers of the same kind as those encountered outside of the project limits, and which were in no way related to, affected by, or in thе area of its actual operations. Thus, the contract was not an undertaking to provide warnings generally throughout the project limits, so we are not concerned with the right of a third party to recover against the agent (Contractor) for nonfeasance of such a specialized contractual duty. Seе Restatement of the Law, Agency, Section 354. Cf. Lawrence Warehouse Co. v. Defense Supply Corp., 9 Cir.,
Moreover, assuming negligence, the proof failed to meet the Louisiana standard 4 ' for establishing causal relationship by сircumstantial evidence *807 —essential here since the version of Sergeant Roekovich, the only living eyewitness, if not actually contradictory of the plaintiffs’ theory, since he testified that all he saw was, just before the crash, a truck approaching from the east, certainly failed to show any direct relationship between the hole in the pavement and the collision. The plaintiffs’ theory is that in an effort to avoid the hole, the Bounds’ car had to leave the paved slab and, because the dirt shoulder on the Bounds’ side was two to six inches below the surface of the concrete, the vehicle was caused to swerve out of control back onto the concrete slab over on to the south half in the path of the oncoming Roekovich car. To establish this theory, the plaintiffs offered evidence showing skid marks some 40 feet west of the defect; the skid marks from the right wheel started from the north edge of the pavement indicating that the right wheels had bеen on the shoulder immediately before, and these skid marks extended over into the debris at the point of impact about 125 feet west of the hole.
As we pointed out in Smith v. General Motors Corp., 5 Cir., 1955,
There was nothing for the jury. Entry of judgment for the defendants was right, Strawn v. Travelers Insurance Co., 5 Cir.,
Notes
. The plaintiffs comprised McClendon -who was injurеd and the survivors of Bounds, Lambert and Mrs. Osborne, all killed, each of whom was a passenger in the Bounds’ automobile. The suit was against the Contractor and its liability insurer, Louisiana Direct Action Statute, LSA-R.S. 22:655; Lumbermen’s Mutual Casualty Co. v. Elbert,
Sergeant Rockovieh was the sole surviving eyewitness.
. The defendants’ motion for an instructed verdict was overruled, and the case submitted to the jury under instructions narrowing Contrаctor’s obligation to that of warning. On the failure of the jury to agree, it was discharged and judgment subsequently entered for the defendants, E.R.C.P. 50(b).
. The contract is a standard form covering a highway project in great detail, is approximately 58 pages in length, and incorporates Division I of the Standard Specifications comprising аnother 45 pages. Principal reliance is placed on excerpts from page 4:
“Maintenance of traffic: The contractor will be required to provide for and maintain through and local traffic at all times during the construction of this project * * *
* * * * *
“Specific reference is made to Articles 7.07 and 7.08 Division I of thе Standard Specifications. Adequate barricades, warning signs and lights shall be provided at all times.”
The following excerpts from Division I emphasized are:
“7.07. Public Convenience and Safety: * * * The convenience of the general public, the residents along and adjacent to the highway and the protection of persons and property are of prime importance аnd shall be adequately provided for by the Contractor
* * * * *
“When the highway under construction is open to the traveling public, the contractor shall maintain both the subgrade and the surfacing in such condition that the public can travel over same in comfort and safety and shall at Ms own expense blade and drag the subgrades and all courses adapted to such treatment, when and as directed by the engineer. To accommodate traffic on the roadway under construction, the contractor shall provide and maintain in a passable condition all by-passes * * *. - During the progress of the work, the contractor shall provide for local traffic to private property * * *.
“7.08. Barricades, Danger, Warning and Detour Signs: The contractor shall provide, erect and maintain all necessary barricades, suitable and sufficient red lights, danger signals and signs, provide a sufficient number of watchmen and take all necessary precautions for the protection of thе work and workmen and safety of the public. * * *
“The contractor’s responsibility for the maintenance of barricades, signs, and lights shall not cease until the project shall have been completed and accepted * *
“4.05. Traffic: “ * * * When specifically provided by the contract that traffic shall be routed over the рroject during construction, the contractor shall maintain the portion under traffic at Ms own expense * * *. When the road under construction is to be kept open for the use of the traveling public, special attention shall be paid to keeping both the subgrade and newly laid surfacing in such condition that the public cаn travel the road in safety. As soon as possible after rains, and at other times when directed the contractor shall at his own-expense machine the subgrade and drag and machine the newly laid surfacing material. The contractor shall be responsible for the convenience and safety of the traveling public.”
. Marcel v. De Paula Truck Lines, La. App.,