High v. State Highway Dept.

• Decision Date: 06 April 1973
• Citation: 307 A.2d 799
• Parties: Nesta W. HIGH, widow of Robert M. High, Plaintiff-Below, Appellee, Cross-Appellant, and Cross-Appellee, v. The STATE HIGHWAY DEPARTMENT of the State of Delaware, and Eastern States Construction Company, Inc., a corporation of the State of Delaware, Defendants-Below, Appellees Appellants, Cross-Appellees and Cross-Appellants, v. James A. WASHINGTON and Irving Chernekoff, t/a Installers Associates, Defendant-Below, Cross-Appellee and Cross-Appellant.
• Court: Supreme Court of Delaware

Page 799

307 A.2d 799

Nesta W. HIGH, widow of Robert M. High, Plaintiff-Below, Appellee, Cross-Appellant, and Cross-Appellee, v. The STATE HIGHWAY DEPARTMENT of the State of Delaware, and Eastern States Construction Company, Inc., a corporation of

the State of Delaware, Defendants-Below, Appellees Appellants, Cross-Appellees and Cross-Appellants, v. James A. WASHINGTON and Irving Chernekoff, t/a Installers

Associates, Defendant-Below, Cross-Appellee and

Cross-Appellant.

Supreme Court of Delaware.

April 6, 1973.

F. Alton Tybout, of Tybout, Redfearn & Schnee, Wilmington, for Nesta W. high.

Ben T. Castle and William F. Taylor, of Young, Conaway, Stargatt & Taylor, Wilmington, for State Highway Dept. Roger Sanders and Walter P. McEvilly, Jr., of Prickett, Ward, Burt & Sanders, Wilmington, for Eastern States Constr. Co.

E. N. Carpenter, II, and A. M. Terrell, Jr. of Richards, Layton & Finger, Wilmington, for James A. Washington and Irving Chernekoff, t/a Installers Associates.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

WOLCOTT, Chief Justice:

This is an appeal from a judgment entered on a jury's verdict in a wrongful death action brought under 10 Del.C. § 3702(b) by the widow of the deceased. The plaintiff appeals solely on the question of the amount of damages, and asks for a new trial on the issue of damages alone. All four defendants appeal generally. The State Highway Department and Eastern States Construction Company, Inc., the contractor on the job, appeal the imposition of any liability upon them. Irving Chernekoff, t/a Installers Associates, the owner of the truck involved in the accident, and James A. Washington, the driver of the truck, appeal on the basis of the alleged contributory negligence of the decedent.

We first take up the appeal of the defendants Washington the Chernekoff. Initially, we note a query as to how Washington can be an appellant since a judgment by default was taken against him below. We pass over this, however, since Chernekoff, the owner of the truck Washington was driving, is obviously a proper appellant. The jury returned a verdict to the effect that Chernekoff and Washington were 85% Liable for the death of the plaintiff's decedent. One point only is raised, viz., that they were entitled to a directed verdict in light of what is described as undisputed evidence of plaintiff's decedent's negligence at the time of the accident. It is necessary to briefly state the facts relating to this contention.

The site of the accident resulting in the death of plaintiff's decedent was on a detour made necessary by reconstruction of the Governor Printz Boulevard north of Wilmington. At the time of the accident in question, the Governor Printz Boulevard, a dual two-lane highway, one lane going north and the other south, was under construction. This involved the closing off of a section of the southbound lane and the rerouting of southbound traffic over the grass dividing plot onto the northbound lane which, for a distance, was thereby made north and southbound traffic, each occupying and permitted to travel on a single lane of a former two-lane northbound highway. The north and southbound single-lane roadways were divided by a double yellow line which, under the traffic regulations of the State of Delaware, prohibit passing or crossing over those lines.

At the time of the accident, Washington was driving Chernekoff's truck north in the righthand lane of the detour. A large tanker truck in front of him suddenly stopped. Washington applied his brakes, causing his vehicle to swerve to his left. At the same time, plaintiff's decedent, proceeding southbound in the opposite lane of the detour, had just passed the tanker truck when his vehicle and the truck driven by Washington collided on, or approximately on, the dividing yellow line adjacent to the southbound lane.

These appellants contend that plaintiff's decedent was driving on approximately two and a half inches of this yellow dividing line in violation of 21 Del.C. § 4120(b), which requires that no driver shall drive on the 'left side of any pavement stripping' designed to mark a no-passing zone throughout its length. Thus, say these appellants, the plaintiff's decedent was guilty of contributory negligence by reason of a violation of this statute, which prevents recovery by his widow since it was a proximate cause of the accident.

There were no independent eyewitnesses to the accident, itself. These appellants' contention as to contributory negligence depends entirely upon the testimony of a State Trooper who investigated the accident and, from the circumstances available, attempted to reconstruct what happened. These appellants say that the Trooper's testimony is explicit to the effect that plaintiff's decedent was operating his automobile on the yellow line nearest the lane on which he was traveling southbound at the time of the accident.

The physical condition of the two vehicles after the accident indicated that the extreme left front of Chernekoff's truck struck the extreme left front of plaintiff's decedent's car in a head-on collision. Both vehicles traveled in the direction in which the truck had been traveling for some feet before coming to a stop. The officer also testified that the impact of the two vehicles coming together forced the left part of the front bumper on plaintiff's decedent's car down to the roadbed, and that it gouged a mark in the yellow line on the side of the southbound traffic lane approximately two and a half inches from the lane, itself. It is upon this circumstance that these appellants base their argument as to contributory negligence.

They say that the officer assumed the gouge mark in the yellow line to be the point of impact of the two vehicles, thus, demonstrating that plaintiff's decedent was driving on the yellow line at the time of the impact. It is true that at one point the Trooper stated that this was the point of impact, but it seems apparent that he must have been somewhat confused at the time because, in answer to several other questions, he stated quite clearly that the impact took place within the limits of the southbound lane, thus indicating that Chernekoff's truck had crossed the yellow line and struck the plaintiff's decedent's car. Furthermore, Washington, the driver of the truck, in a statement made to the officer following the accident, readily admitted that his truck crossed the double yellow line and struck plaintiff's decedent's car. He ascribed the reason for crossing the line to a grabbing of his brakes which he had put on hard.

Furthermore, the paths of the two vehicles an their final resting place show that, following the impact, the plaintiff's decedent's car was driven back and rotated in a counter-clockwise manner. It seems to us that the jury could have believed that the bumper on plaintiff's decedent's car, having been knocked loose by the impact, and having been forced down, and the car commencing to turn in a counter-clockwise direction, placed part of the bumper over the yellow line, gouging out the mark noticed by the State Trooper. If the jury accepted this version, which was argued to it, then obviously plaintiff's decedent is guilty of no contributory negligence.

We think the point is entirely factual and, if there was any confusion in the testimony and evidence regarding the point of impact, it was the jury's duty to resolve that confusion, which it apparently did in favor of plaintiff's decedent. We are therefore of the opinion that the appeals docketed on behalf of Washington and Chernekoff must result in an affirmance of the judgment.

We turn now to the appeal docketed by the State Highway Department. The Department urges that error was committed by the refusal of the Trial Judge to grant its motion for summary judgment or its subsequent motion for a directed verdict in its favor, and also that error was committed by the Trial Judge in his instructions to the jury on the Highway Department's general duty of care.

It appears from the record that the general contractor, Eastern States, as required by its contract, prepared a plan for the detour in question prescribing the various precautions to be taken to protect the traveling public. This included such things as signs regulating speed, 'do not pass', 'detour', 'slow', etc. Eastern States submitted the plan to the Highway Department for its approval. The Highway Department considered the plan and suggested several revisions which were made by Eastern States, and the entire plan was then approved by the proper officials in the Highway Department.

The plan basically provided for a series of detour signs and barricades erected at each end of the detour; the painting of double yellow lines down the center of the northbound lane; the placing of 'do not pass' signs; the placement of lawful speed limit signs of 35 m.p.h., and the placement of 'advisory' speed signs of 25 m.p.h. interspersed along the detour route.

All of the experts who testified both for the plaintiff and for the defendants, stated that the traffic-routing plan ultimately approved by the Highway Department was prepared in accordance with usual and normal provisions for the installation of safeguards for the traveling public in accordance with the 'Manual of Uniform Traffic Control Devices', used by the Highway Departments of most, if not all, of the States for this purpose....