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Kimberlin v. PM Transport6/7/2002
In this appeal, we determine whether the trial court erred in striking the plaintiff's evidence and entering judgment in favor of the defendants.
I.
Leisa D. Kimberlin (the Plaintiff) filed a personal-injury action against the Administrator of the Estate of James E. Rapp, Jr., deceased, and Rapp's employer, PM Transport, Inc. (collectively, the Defendants). The Plaintiff alleged that her injuries sustained in an automobile accident were proximately caused by Rapp's negligence while he was acting in the scope of his employment.
Following a three-day jury trial, the trial court struck the Plaintiff's evidence and entered final judgment in favor of the Defendants. We awarded the Plaintiff this appeal.
II.
According to well-established precedent, we must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Plaintiff. The Plaintiff was injured in a motor- vehicle accident that occurred on the night of November 21, 1997. * Rapp was driving a tractor pulling a fully loaded tanker containing 8,000 gallons of gasoline. Rapp was traveling in the northbound lane of U.S. Route 220 Business, in Alleghany County, near the City (now Town) of Clifton Forge. A short distance south of the accident scene, U.S. Route 220 Business intersects with U.S. Route 220.
The accident scene is in an area where rocks often fall onto the highway. Consequently, there were three highway signs in the area that read, "Watch for Falling Rocks." Rapp was very familiar with this portion of the highway because he traveled it often, and he was aware of the signs.
The night of the accident was dark and stormy. Rain was falling, and, according to Rapp, it was "real foggy." There was no artificial lighting in the area.
As Rapp turned the tractor-tanker from Route 220 onto Route 220 Business, the driver of an approaching vehicle flashed the vehicle's headlights. Rapp considered this a warning. Despite this warning, however, Rapp increased his tractor's speed and proceeded along Route 220 Business about 45 miles per hour, the posted speed limit.
Although Rapp had an unobstructed view of 300 to 400 yards and his vehicle was equipped with headlights and fog lights, Rapp's tractor struck a rock in the middle of his lane of travel, and he lost control of the vehicle. The tractor-tanker veered to the left, struck a rock wall, and came to rest "snug " against the wall on the west side of the highway. Gasoline from the tanker and diesel fuel from the tractor were rapidly spilling onto the highway, which slopes downgrade to the north. Rapp quickly exited the tractor and ran north along the highway.
As Rapp proceeded, he observed a vehicle, operated by the Plaintiff, approaching from the north. Rapp tried to warn the Plaintiff of the impending danger, but the Plaintiff never saw Rapp or his vehicle.
As the Plaintiff approached the accident scene, she observed what she believed to be fog, but which may have been smoke. The Plaintiff reduced the speed of her vehicle to 20 or 25 miles per hour.
Immediately upon entering the fog or smoke, the Plaintiff's vehicle exploded and was engulfed in flames, and the Plaintiff sustained burns.
The day after the accident, a rock, described as "large," was found near the front of Rapp's vehicle. Rapp never saw the rock and gave no explanation for not having seen it.
Although the tractor-tanker had been equipped with reflective triangles and other warning devices, including orange cones, Rapp did not set out any of these devices because he was scared and wanted to get away from the vehicle as
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