Lula Irene Mayberry v. Clarkson

This is an action by a husband and wife for damages aggregating $80,000 for personal injuries of each and for loss of consortium each allegedly sustained when their automobile left the paved portion of an interchange being constructed by defendant at an intersection of two major highways and plunged into a ditch. Verdict and judgment were for defendant. The trial court sustained plaintiffs' motion and granted them a new trial on the ground of misconduct of a juror and intentional concealment on voir dire by other jurors. Defendant appeals from that order. We affirm, not for the reasons assigned by the trial court, but for error in the giving of an instruction. Plaintiffs' petition is in two counts. Count I is for Mrs. Mayberry's damages for (1) her injuries, and (2) her loss of consortium of Mr. Mayberry as a result of his injuries. Count II is for Mr. Mayberry's damages for (1) his injuries, and (2) his loss of consortium of Mrs. Mayberry as a result of her injuries. The petition alleges that on and prior to the date of the accident (November 26, 1965) defendant, under a contract with the State Highway Commission, was engaged in the construction of new U.S. 71 By-pass (hereinafter I-470) south of its intersection with U. S. Highway 40 (hereinafter Highway 40) and an on-ramp for east-bound traffic leaving Highway 40 to travel south on I-470; that at their intersection, I-470, a four-lane divided highway running generally north-south, crosses Highway 40, an east-west four- lane divided highway, above the grade of the latter; that immediately north of the intersection, I-470 and an off-ramp for its south-bound traffic is partially completed and open to traffic; that south-bound traffic desiring to reach old 71 By-pass south of the intersection must take the off-ramp at this point, cross the two north lanes and median strip of Highway 40 and turn left onto its two south lanes for east-bound traffic; that on and prior to the date of this accident defendant was preparing the area immediately south of Highway 40 and west of I-470 for the construction of the on-ramp leading from the east-bound lanes of Highway 40 to I-470, and in the process of preparation had cut back and away a rock bluff and was leveling and grading the right-of-way area and roadbed for the on-ramp; that a hole was excavated in this area on the south side of and adjacent to Highway 40 which was directly in front of vehicles traveling south on the off-ramp; that this hole constituted a dangerous hazard to south-bound motorists on the I-470 off-ramp who desired to reach and continue south on old 71 By-pass; that on the date mentioned Mr. Mayberry, with Mrs. Mayberry as his passenger, drove south down the off-ramp, crossed Highway 40, and, as a result of the negligence of defendant, plunged into this hole. The negligence pleaded and submitted was that defendant created or maintained the hole and failed to exercise ordinary care to barricade it or warn south- bound motorists of its existence and danger.