Harrah v. Washington

Present: All the Justices
ROBERT RAYMOND HARRAH,
ADMINISTRATOR, ETC.
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 952312 November 1, 1996
JAMES E. WASHINGTON, JR., ET AL.
FROM THE CIRCUIT COURT OF LOUISA COUNTY
F. W. Harkrader, Jr., Judge
In this action seeking recovery for a wrongful death
occurring during a series of motor vehicle accidents on a fog-
shrouded mountain, we consider issues of primary negligence,
unavoidable accident, sudden emergency, and applicability of the
statute dealing with stopping vehicles on highways.
Appellant Robert Raymond Harrah, Administrator of the Estate
of Peggy E. Harrah, Deceased, filed this action against appellees
James E. Washington, Jr., and Rite Cable Construction, Inc.,
seeking damages for the wrongful death of the plaintiff's
decedent. The plaintiff alleged that on April 20, 1992 the
decedent, his wife, was operating an automobile proceeding in an
easterly direction ascending the western slope of Afton Mountain
on Interstate 64 in Augusta County. The plaintiff further
alleged that defendant Washington, an employee acting within the
scope of his employment with the corporate defendant, was
operating a truck that was stopped in the eastbound lane of I-64.
The plaintiff further alleged that Washington's negligence
at the time and place caused the decedent's death. In responsive
pleadings, the defendants denied Washington was guilty of
negligence and denied they owed the plaintiff any sum.
In an August 1994 trial, a jury found in favor of the
defendants. Overruling the plaintiff's post-verdict motions, the
trial court entered judgment on the verdict. We awarded the
plaintiff this appeal from the September 1995 final order.
Following established appellate procedure, we shall
summarize the evidence, some of which was conflicting, in the
light most favorable to the defendants, the prevailing parties
below.
Interstate 64 crosses Afton Mountain in a generally east-
west direction. There are two eastbound travel lanes, separated
by a broken white line, with a "breakdown shoulder" adjacent to
the right lane. The accident in question occurred in an
eastbound lane on a long, gradual, sweeping curve to the left
near the top of the mountain. A wide median, with grass and
bushes, separates the eastbound and the westbound lanes.
Although the weather conditions were constantly changing on
the slopes of Afton Mountain during the morning of the day in
question, the evidence showed that visibility near the scene at
the time of the 11:15 a.m. incident was greatly reduced by fog.
An investigating police officer testified the "weather was very
foggy," saying he had not encountered worse fog in the area
during the 17 years he had been assigned there.
Prior to the incident in question, a series of fog-related
accidents had occurred in the westbound lanes of I-64 on the
western slope of the mountain. A Waynesboro volunteer rescue
squad crew had been dispatched to render first aid there. A
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crew-member testified that as he was riding in the rescue
vehicle, proceeding eastbound up the mountain on I-64 in an
effort to find the westbound "wreck," "the only way we could see
the wreck is if you looked out the driver's side. You couldn't
see it coming head on."
Eventually, the crew "found the front of the wreck." The
rescue vehicle's driver stopped "the crash truck" partly on the
narrow left shoulder of the eastbound lanes. Part of the vehicle
rested in the travel portion of the left eastbound lane that was
11 feet 3 inches wide.
The "crash truck" was a heavy vehicle 30 feet long, 8 feet
wide, and approximately "11 foot tall." It was "predominantly
white with green stripes." Testimony showed that the lighting on
the rear of the vehicle included six red emergency lights, three
on each side, with "four of them going on and off and two of them
being . . . like a strobe." A photograph received in evidence of
the rear of the vehicle appears to show ten red lights (five on
each side) as well as two large strobe lights near the top (one
on each side) and two smaller white lights near the bottom (one
on each side).
Approximately ten minutes before the accident sued upon,
State Trooper Frank Pyanoe, rushing from Staunton to the scene of
the westbound accidents, travelled eastbound on I-64 until he
"came upon" the stopped crash truck. He said it "extended out to
the travel area" of the left eastbound lane. He noticed "a major
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accident over on the westbound side." The officer stopped his
police vehicle behind the rescue squad truck because "there were
no emergency lights flashing at the time" on the truck.
During a conversation between the trooper and a rescue squad
member over "some type of electronic . . . difficulty with the
vehicle," the trooper advised the member that "he either had to
turn the lights on or move to a safer spot, preferably over to
the right side of the interstate." Immediately, the lights were
activated.
The trooper, driving a 1988 Ford Crown Victoria police
cruiser, then proceeded "entirely in the eastbound lanes on the
left-hand side" around the crash truck to go to the westbound
accident scene. At this time, "the accident had not begun in the
eastbound lane."
Defendant Washington, age 38 and a Louisa County resident,
left the corporate defendant's Charlottesville office near 8:00
a.m. on the day in question to travel to Staunton to pick up two
rolls of cable. The defendant drove his employer's white Dodge
Ram truck that had been modified with a "work cab" for storing
tools. He was towing a red two-wheel trailer that was ten feet
long and about seven feet wide.
Washington testified that, as he crossed Afton Mountain
travelling westbound on I-64 en route to Staunton, it was raining
and there was "very dense fog on the mountain itself. It was
bad."
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After loading the cable on the trailer in Staunton,
Washington proceeded to return to Charlottesville, travelling
eastbound on I-64. Washington testified that when he reached the
foot of the mountain on the west near 11:00 a.m., the weather was
not "bad" although, he said, "I knew it was bad on the mountain
because I just came across it."
Proceeding up the mountain, defendant had the vehicle's
lights "on." As he "went up, it got foggier," so he turned his
"flashers on." Driving in the right eastbound lane at a speed of
30-35 miles per hour, he "got behind a tractor-trailer." He said
that because the "weather was real bad and [he] couldn't see very
far," he decided to pass the truck in order "to see better" and
to know where he was "headed." He testified that he activated
his left-turn signal, looked into his left side mirror, and,
seeing no vehicle to his left, "proceeded to the left-hand lane."
When Washington reached the left lane, he saw flashing
lights about 50 yards ahead in the left lane. Washington said,
"it looked as if there were two ambulances up there." He slowed
his vehicle and stopped in the left lane because he "couldn't go
any further at that time" due to "traffic in the right-hand
lane." Then Washington "looked in the mirror" and saw a white
automobile "on the left-hand side of the road off onto the
median." This was a 1990 Honda Accord operated by the witness
Deborah F. Branstetter.
Branstetter had been travelling eastbound in the left lane
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of I-64. She described the weather conditions at the time as
cool and "very overcast." The pavement was dry and there was
"fog on the mountain." She said the density of the fog would
change; visibility improved and "then it would become very thick
suddenly." As she ascended the mountain, Branstetter gradually
reduced her speed from 65 to 35 miles per hour.
The witness observed defendant's vehicle ahead in the right
lane. As she was in the process of overtaking it, and when her
vehicle was "even" with defendant's trailer, she could see lights
burning on the rear of defendant's truck. At that point,
Washington "simply changed lanes." She said that "he did not
give a signal." A state trooper testified that a vehicle's "turn
signals are cancelled out" when four-way emergency "flashers" are
activated.
According to Branstetter, there was no contact between the
vehicles because she swerved "out of the way of the trailer into
the median strip." She stopped her vehicle with all four wheels
in the grassy median.
Alighting from his stopped truck, Washington ran back to the
Honda and asked the operator "what had happened." She responded,
"You ran me off the road." After determining that she was "all
right," Washington ran back to his vehicle and moved it forward
in the left lane "a very short distance. A few feet at the most."
Washington testified that he desired to move to the right lane
but could not because of traffic there and that he "couldn't go
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further up because of the crash truck that was in front of me."
"Shortly" after he moved his truck forward, Washington
looked "into the mirror" and saw a "gray Cadillac coming," which
struck his trailer and truck from the rear. This vehicle was
operated by the witness David L. Gooden, who was travelling
eastbound on I-64 in the left lane.
Gooden said that as he ascended the western slope of the
mountain, the weather conditions changed as he left the bottom of
the mountain; the fog "got thicker at the top." He testified
there "were spots that you couldn't hardly see at all and spots I
could see probably 20 yards." As Gooden came out of "a real
dense area of fog," he observed defendant's "pickup with a
trailer" stopped 20-25 yards ahead in the left lane. Gooden
"hit" his brakes but, travelling at a speed of 45 miles per hour,
struck defendant's vehicle.
After being struck by the Gooden vehicle, Washington "got
out" of his truck to assist a passenger in the Gooden vehicle who
was having difficulty extricating herself from the automobile.
At this moment, another automobile crashed into the Gooden
vehicle. This was a 1989 yellow Cadillac Seville operated by the
plaintiff's decedent.
The collision of the decedent's vehicle with the Gooden
vehicle caused the Gooden passenger and a rescue squad member to
be pinned under the Gooden vehicle. Washington, rescue squad
personnel, and bystanders joined in lifting the gray Cadillac,
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freeing the trapped persons. Shortly thereafter a white truck
"came through" and collided with the decedent's vehicle. This
truck was a Ford Ranger pickup operated by the witness Paul W.
Burch.
As Burch proceeded eastbound on I-64, the weather "was
pretty sunny at the bottom and increasingly cloudy going up the
mountain." According to Burch, "it was very foggy" at "the top
of the mountain" until "there was no visibility whatsoever."
Travelling at a speed of 25 to 35 miles per hour in the left
lane, Burch applied brakes when "the visibility was reduced to
almost nothing," and struck the decedent's vehicle without seeing
it.
Riding in the vehicle operated by the plaintiff's decedent,
age 43, were the Harrahs' two children and their paternal
grandmother. The grandmother was seated in the front passenger
seat as they drove in the left, eastbound lane ascending the
mountain. She testified the decedent was driving about 30 miles
per hour with the headlights burning "because of the fog." At
the time of impact with the Gooden vehicle, the grandmother's
attention was directed to the children riding in the back seat.
She described the impact as "light because it did not knock any
of us out of our seat belts." Following the impact, the decedent
said, "What have we hit"?
After the collision, the decedent and the grandmother became
involved in assisting the children from the vehicle, which was on
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the roadway, to the grassy median. Shortly thereafter, as
Burch's truck struck the decedent's vehicle, a rescue worker "saw
what appeared to be a body fly through the air." This was the
decedent, who was seriously injured and found "draped across" the
red trailer.
At the conclusion of all the evidence, the court denied the
plaintiff's motion to strike the defendants' evidence on the
issue of liability. Then, the court gave the jury a profusion of
31 instructions. Among the issues covered in the jury charge
were Washington's primary negligence, the decedent's contributory
negligence, proximate cause, superseding and intervening cause,
concurrent negligence, unavoidable accident, sudden emergency,
and duties of drivers of vehicles stopping on highways.
On appeal, the plaintiff first argues the trial court "erred
by not ruling, as a matter of law, that defendant Washington was
negligent when he failed to keep a proper lookout and failed to
give a visible signal before changing lanes and pulling directly
into the path of an oncoming vehicle." Focusing solely on
defendant's alleged involvement with Branstetter, the plaintiff
contends the evidence establishes that Branstetter was driving
her Honda in the left lane when Washington suddenly turned into
her lane to pass a tractor-trailer, and forced her vehicle off
the highway. Continuing, plaintiff says that either Branstetter
was in plain view and Washington failed to see her, or it was so
foggy that Washington could not see if the left lane was clear to
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make a lane change. Under either set of circumstances, the
plaintiff argues, Washington breached his duty to maintain a
reasonable lookout when he changed lanes.
Furthermore, the plaintiff argues, Washington violated Code
§ 46.2-848, which requires every driver who intends to turn from
a direct line to give a plainly visible signal of such intention
whenever the operation of any other vehicle may be affected by
such movement. Recalling the testimony to the effect "that
flashing hazard lights cancel any attempted turn signal," the
plaintiff says it is "uncontradicted that no such signal was
given by Washington." Plaintiff contends the fact that
"Washington may have pressed down on his turn signal lever is no
defense to his failure to give a plainly visible signal."
We do not agree with plaintiff's argument. We are of
opinion that the question whether Washington's negligence, if
any, was a proximate cause of the collision resulting in
decedent's death was, at the very least, a question for the jury.
We say, "at the very least," because we do not have the question
whether, as a matter of law, Washington's negligence, if any, in
changing lanes was not a proximate cause of decedent's death.
Thus, given the issues on appeal, we shall go no further than to
rule on the question presented by the plaintiff relating to
Washington's duties owed to the decedent vis-a-vis the
Branstetter incident.
The evidence establishes that Washington initially stopped,
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not because of any interaction with Branstetter, but due to the
crash truck's position ahead. It was for the jury to determine
whether Washington reasonably believed the truck was blocking his
passage through the left lane.
Other testimony confirmed Washington's belief that the crash
truck blocked his way. For example, the investigating state
trooper testified "three to four feet" of the truck was "in the
travel portion of the left-hand lane of 64." Another witness
testified he recalled "a substantial portion of the crash truck
being in the left-hand lane." Yet another witness testified the
crash truck "was predominantly in the left-hand lane of travel."
Likewise, it was for the jury to say whether Washington
reasonably believed that "bumper-to-bumper traffic" proceeding in
the right lane prevented him from moving into that lane and
around the truck.
Therefore, the trial court did not err in submitting to the
jury questions relating to Washington's conduct as it affected
Branstetter and the ultimate role that conduct played in the
decedent's death.
Second, the plaintiff argues the trial court erred by giving
an unavoidable accident instruction. We agree.
In a mere abstract statement of law, the trial court charged
the jury: "An unavoidable accident or incident is one which
ordinary care and diligence could not have prevented or one which
occurred in the absence of negligence by any party to this
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action."
The defendants seek to justify the granting of the
instruction by arguing, in part, that inclusion of the phrase "by
any party to this action" has significance here. They say that
despite all the vehicles involved, "the extreme weather
conditions and the crash truck blocking the left travel lane,
plaintiff chose only to sue Mr. Washington and his employer in
this action, and to file a separate action against the rescue
squad which is currently pending in Augusta County." The
defendants contend that "Washington was entitled to defend on the
basis that this accident was unavoidable from his standpoint."
As we understand the defendants' argument, they contend that
if there are nonparties who are negligent in connection with a
motor vehicle accident, then a party defendant may invoke the
unavoidable accident doctrine to establish such defendant's
freedom from fault. We disagree. The fact that all potentially
liable parties are not joined in this action does not remove the
case from the application of our decisions disapproving use of an
unavoidable accident instruction.
Few motor vehicle collisions occur without fault. For this
reason, we have emphasized that an unavoidable accident
instruction is rarely appropriate in motor vehicle accident
cases, although we have not abolished the doctrine or limited it
to cases involving accidents resulting from unknown causes.
Chodorov v. Eley, 239 Va. 528, 531, 391 S.E.2d 68, 70 (1990).
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Such an instruction has the tendency to afford a jury "an easy
way of avoiding instead of deciding the issue made by the
evidence in the case." Mawyer v. Thomas, 199 Va. 897, 901, 103
S.E.2d 217, 220 (1958). Accord Gardner v. Phipps, 250 Va. 256,
261, 462 S.E.2d 91, 94 (1995).
In the present case, the decedent's death resulted from the
negligence of one or more of the several vehicle operators who
were involved in this bizarre series of events. Thus, the trial
court committed reversible error by instructing on unavoidable
accident.
Because the case must be remanded, we shall discuss the
other issues raised by the plaintiff, for they may arise upon a
retrial.
Third, the plaintiff contends the trial court erred by
giving an instruction on the sudden emergency doctrine. We
agree.
The trial court charged the jurors that if they believed
from the evidence that Washington, "without negligence on his
part, was confronted with a sudden emergency and acted as a
reasonable person would have acted under the circumstances of
this case, he was not negligent." Further, the instruction
provided: "A sudden emergency is an event or a combination of
circumstances that calls for immediate action without giving time
for the deliberate exercise of judgment." Although the
instruction correctly sets forth the sudden emergency doctrine,
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see Carolina Coach Company v. Starchia, 219 Va. 135, 141, 244
S.E.2d 788, 792 (1978), Washington is not entitled to its benefit
under the facts of this case.
For the doctrine to apply, the condition confronting the
operator must be an "unexpected happening." Gardner, 250 Va. at
260, 462 S.E.2d at 94. In other words, where a set of
circumstances has existed and the party has been exposed to them
before, the situation is not "unexpected." Id.In the present case, Washington was thoroughly familiar with
the weather conditions on the mountain at the time, based on both
his experience earlier in the morning and his observations as he
ascended the mountain just before he stopped his vehicle. Given
those conditions, Washington knew, or should have known, that a
vehicle might be stopped ahead in his lane of travel. Such an
occurrence was foreseeable and not unexpected. See Chodorov, 239
Va. at 531, 391 S.E.2d at 70.
Moreover, Washington was not confronted with a sudden
emergency after he reentered his truck and moved it forward a few
feet. Then, he had time for the deliberate exercise of judgment.
Finally, the plaintiff contends the trial court's
instruction relating to the duties of an operator who stops his
vehicle on a highway was incomplete and thus erroneous. We
agree.
Code § 46.2-888 prohibits a person from stopping a vehicle
in such a manner as to impede or render dangerous the use of a
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highway, "except in the case of an emergency, an accident, or a
mechanical breakdown." The statute further provides that in the
event of such emergency, accident, or breakdown, the stopped
vehicle "shall be moved from the roadway to the shoulder as soon
as possible and removed from the shoulder without unnecessary
delay."
The trial court charged the jury: "The driver of a vehicle
has a duty not to stop his vehicle so as to interfere with
traffic on the highway or so as to make the highway dangerous to
others who are using it, unless there was an emergency or an
accident."
Arguing the instruction was incomplete, the plaintiff
correctly says the trial court should have instructed the jury on
"Washington's additional duty to move his vehicle off the roadway
as soon as possible, even though it was properly stopped for an
emergency." The instruction was misleading because it ignored
Washington's statutory duty to take further action after he
stopped. See Armstrong v. Rose, 170 Va. 190, 202, 196 S.E. 613,
617 (1938). Parenthetically, we observe that our ruling applying
the "emergency" provision of this statute, is not inconsistent
with our previously expressed view that the sudden emergency
doctrine does not apply to Washington.
Consequently, although the trial court correctly decided the
first issue, the judgment below will be reversed and vacated
because of the court's misdirection of the jury, and the case
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will be remanded for a new trial on all issues.
Reversed and remanded.
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