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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