Dowless v. C. C. Mangum, Inc.

Judge Hedrick

dissenting.

The evidence reveals that the defendant’s equipment and men were blocking the south side of the highway 500 to 600 feet beyond the point where defendant’s flagman directed plaintiff’s driver to proceed on the pavement on the left side of the road. Following the instructions of the flagman, plaintiff’s driver drove the truck along the left side of the highway to within 200 to 300 feet of the equipment where he first observed the “scraper blade” extending across the white line into the left side of the highway. The driver testified: “When I was about two hundred feet from the equipment I determined I didn’t have enough room to get by it without going on the shoulder, so I turned off onto the shoulder.”

In my opinion, the evidence does not raise an inference that defendant’s flagman directed plaintiff’s driver to drive the truck off the pavement upon the shoulder of the road. There is no evidence from which the jury could find that the defendant selected, laid out or maintained the shoulder of the highway as a detour around defendant’s equipment and men.

Although the evidence may be sufficient to raise an inference that the defendant failed to obey the mandate of the statute by selecting and laying out a suitable detour around the “scraper blade” blocking a portion of the lane of the highway upon which the plaintiff’s driver was directed to proceed, it seems clear to me that this breach was not a proximate cause of the accident.

*262In my opinion, the evidence of actionable negligence upon the part of the defendant is not sufficient to carry the case to the jury.

I vote to affirm the judgment allowing defendant’s motion for a directed verdict.