J & E Express, Inc. v. Hancock Peanut Co., 771124

• Decision Date: 08 June 1979
• Docket Number: No. 771124,771124
• Citation: 255 S.E.2d 481,220 Va. 57
• Court: Virginia Supreme Court
• Parties: J & E EXPRESS, INC., and Charles Spears, Jr. v. HANCOCK PEANUT COMPANY. Record

Page 481

255 S.E.2d 481

220 Va. 57

J & E EXPRESS, INC., and Charles Spears, Jr. v. HANCOCK PEANUT COMPANY.

Record No. 771124.

Supreme Court of Virginia.

June 8, 1979.

Donnell P. Davis, Norfolk (Richard A. Saunders, Furniss, Davis & Rashkind, Norfolk, on brief), for plaintiffs in error.

Richard C. Grizzard, Boykins, for defendant in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

HARRISON, Justice.

The Hancock Peanut Company sought to recover damages caused by the alleged negligence of Charles Spears, Jr., who in operating a tractor-trailer for his employer, J & E Express, Inc., struck and ruptured an extension pipe attached to plaintiff's warehouse sprinkler system. The subsequent damage to the peanuts stored in the building was stipulated at trial. The case was submitted to the jury on the issues of defendants' negligence and the proximate cause of the accident. The jury's verdict in favor of the defendants was set aside and judgment entered for the plaintiff for $39,295.30 with interest and costs based upon a finding by the trial court that, as a matter of law, the defendants were negligent and the plaintiff was free of contributory negligence.

Defendants assign error to the action of the trial court (1) in setting aside the jury's verdict, (2) in overruling defendants' motions to strike plaintiff's evidence and to enter summary judgment, and (3) in refusing to grant the defendants an instruction on contributory negligence.

Hancock operates its peanut business at a site west of the Town of Courtland. At this plant it uses a 200-foot frame warehouse for the cold storage of peanuts. Cargoes of peanuts delivered to and shipped from the warehouse are moved across an eight-inch thick reinforced concrete loading dock which extends the entire length of the building. The dock is an estimated 15 feet in width and is approximately five feet above ground level. Its entire length is covered by a roof which extends approximately 18 to 24 inches beyond the dock's outside edge. The overhang of the roof is of sufficient height to permit a standard trailer to be backed up to the loading dock. Beneath the roof and running the entire length of the dock is a longitudinal pipe of the building's sprinkler system. This pipe is located directly over and parallel to the outer edge of the dock, a distance of 12 feet 3 inches from ground level. At spaced intervals the water pipe is intersected by T-joints, and pipes which lead therefrom extend perpendicularly into the interior of the warehouse where peanuts are stored. It appears that only one T- joint extends beyond the outer edge of the dock. It is admitted that this joint extends a distance of 55/8 inches farther than any other pipe of the sprinkler system. It is this extension of pipe around which this case revolves.

About noon on December 19, 1973, Charles Spears, Jr., an employee of J & E Express, Inc., drove his employer's tractor-trailer "rig" upon Hancock's warehouse premises for the purpose of positioning the empty trailer ¹ at the loading dock. It was to be left there to be loaded by Hancock's employees, and Spears was to pick up a loaded trailer and proceed on a designated trip. In backing up to the dock, the upper portion of defendants' trailer struck the extended T-joint. The impact caused a rupture of the sprinkling system within the warehouse and the damage to the peanuts stored there.

To establish primary negligence the plaintiff called three of its part-time employees as witnesses. They testified that at the time of the accident, they had gathered to eat lunch in a small room, known as the "scale room", located on the loading dock and along the side of the warehouse. George Flythe said that in looking through a window in the scale room, he observed defendants' truck some five or ten feet from the dock, backing up "at kind of an angle". Flythe said that the first time the trailer came back, "He didn't exactly hit it (the extension pipe), but I thought he was going to hit it, but he didn't exactly hit it." The witness said that Spears then pulled up some six or seven feet and started back again, at which time Flythe testified that he ran out on the loading dock and hollered and waved at him. The witness testified that by then the rear of defendants' trailer was "(a)lmost up to the platform".

Herbert Ellsworth, when asked to describe to the jury what happened, testified:

"He (Spears) was backing up to the platform and didn't get it (trailer) quite square to the platform, so he pulled up and when he backed up then, he tapped the pipe that was up there and pulled up to straighten it out. And when be backed up and straightened up, that's when he hit the pipe solid."

When asked how far the driver pulled up to straighten his trailer out, Ellsworth replied, "I can't exactly say. It wasn't too far, just average for a truck or a trailer to pull up and straighten it out." Ellsworth said Flythe didn't leave the scale room and holler at the driver until after the driver had backed up the first time, had pulled out and was coming back. The witness said that the trailer was about five or six feet from the dock when Flythe got outside to the loading dock and began waving his hands. This witness stated that he never left the scale room until after the accident.

Plaintiff's last witness was Louis Ellsworth, who said, "When it (defendants' trailer) backed up to the loading dock and it didn't hit the loading dock, it hit at an angle first and pulled up and backed up and hit the sprinkling system, the water system". The witness testified that Flythe went outside the scale room when defendants' trailer "tapped the first time". He stated that Flythe did his waving from the loading dock, "right in front of the scale", and that when the truck hit the pipe and the loading dock, "(t)he water system busted".

After the court denied defendants' motion to strike plaintiff's evidence and grant them summary judgment, the defendant Spears testified. He said the trailer was empty and that he was to park it at the loading dock, anchor it, and then pick up a loaded trailer from the same dock. Spears testified that "I pulled in the yard, went where the platform was lined up with trailers, made a swing up...