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Harrah v. Washington11/1/1996
OPINION BY JUSTICE A. CHRISTIAN COMPTON
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 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 re
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