Kay Management Co., Inc. v. Creason

• Decision Date: 29 February 1980
• Docket Number: No. 780368,780368
• Citation: 263 S.E.2d 394,220 Va. 820
• Parties: KAY MANAGEMENT CO., INC. v. Martha L. CREASON. Record
• Court: Virginia Supreme Court

Page 394

263 S.E.2d 394

220 Va. 820

KAY MANAGEMENT CO., INC. v. Martha L. CREASON.

Record No. 780368.

Supreme Court of Virginia.

Feb. 29, 1980.

George C. Towner, Jr., Arlington (Simmonds, Coleburn, Towner, Carman & Evans, Arlington, on briefs), for appellant.

Terrence Ney, Fairfax (J. Jay Corson, IV, Boothe, Prichard & Dudley, Fairfax, on brief), for appellee.

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

COCHRAN, Justice.

Martha L. Creason filed a motion for judgment in the trial court against Kay Management Co., Inc., and Herman F. Beard, Sr., for damages for personal injuries allegedly caused by Beard's negligent operation of a backhoe on November 19, 1975. Beard died before trial, and the action was nonsuited as to him. At trial, a jury returned a verdict in favor of Creason against Kay in the amount of $95,000, and the trial court entered judgment upon the verdict. Kay has appealed, contending that Beard was not Kay's servant at the time of the accident, that Creason was contributorily negligent as a matter of law, and that the trial court erred in admitting certain evidence and in instructing the jury.

The accident was a bizarre one. Creason resided in Building 3622 of the Barcroft View Apartments, a 30-building apartment complex managed by Kay. On the day of the accident, she testified, she left her apartment at 7:40 a. m. to walk to a bus stop on Columbia Pike, north of the apartment complex, to take a bus to work. As she stopped at Barcroft View Terrace, the street adjacent to her building, Creason saw a backhoe turn left into the north end of the street that made at its south end a "T" intersection with Barcroft View Terrace. ¹ The machine headed south on the street and moved down grade at a "very slow" speed.

Creason had intended to cross the intersection from the point where she was then standing on Barcroft View Terrace to the sidewalk on the east side of the access street. Instead of crossing there, however, Creason walked east on the Barcroft View Terrace sidewalk past the intersection and past several parked cars until she found a space between cars that was large enough for her to pass through. All vehicles on the street were parked perpendicular to the curb within lined spaces. Creason walked into the street between two parked automobiles stopped at the rear of the cars and looked at the intersection to her left to see if the backhoe was "there yet". She saw nothing, but heard the backhoe, the noise from which reverberated among the nearby buildings so that, although she knew the machine was coming down the access street, she could not be sure of its location.

Creason began to cross the travel portion of Barcroft View Terrace from south to north in a straight line perpendicular to the axis of the street. As she proceeded, she reached into her handbag for bus tokens but continued to look ahead. When she was more than halfway across the street, she had "a sense of danger", and, looking to her left, saw the backhoe bearing down upon her three to five feet away. She estimated that she was then about 20 feet east of the intersection and no more than five feet from the cars parked perpendicular to the curb on the north side of the street. Creason, who was five feet, two inches in height, believed that she was struck in the head by the top of the backhoe's front-end loader or bucket, which she recalled seeing at eye level. Knocked to the ground, she was run over by the machine. She estimated that it took her five to seven seconds to walk from the rear of the parked cars on the south side of the street to the point near the cars on the north side where she was struck.

Beard, the backhoe operator, testified by deposition that he never saw Creason before the accident, and did not suspect that an accident had occurred until he parked his machine in preparation for excavation work. According to Beard, he drove the backhoe down the access street at not more than 11/2 miles per hour, made a left turn into Barcroft View Terrace, and proceeded eastward close to the left side of the street, two and a half to three feet from cars parked on that side, to avoid any children that might dart out from the other side. He conceded that if he had been operating an automobile, he would have driven on his right-hand side of the street. Beard said that the bottom of the front-end loader was six to eight inches off the ground, so that he had a clear view ahead of him. After completing his turn at the intersection, Beard saw one of Kay's laborers whom he knew, walk across the street from south to north in front of him and climb into a pickup truck. Beard continued east and parked the machine at the work site. He let down the bucket in front and the hoe at the rear and cut off the engine. At that time someone called to him that there was a "lady in the street".

Mrs. Kathy B. Gallagher, a resident of Building 3628, was nearby when the accident occurred. She testified that just prior to the accident, she left home to take her children, ages three and seven, to school. Standing on the steps outside her apartment as the children ran ahead to her car parked on Barcroft View Terrace, Mrs. Gallagher, who was more than six feet tall in her shoes, saw and heard the backhoe coming down the access street. It was then about three parking spaces north of the swimming pool shown on Plaintiff's Exhibit 8, an aerial photograph of the area. ² The equipment made a unique sound; it was not "a whole lot louder" than cars in the neighborhood, but it sounded different. She estimated the speed of the backhoe at 15 to 20 miles per hour, and, because of its speed and motion, Mrs. Gallagher was concerned for the safety of her children. Calling to them, she walked rapidly down the steps and sidewalk to the street to put the children into her car.

As she was unlocking the car, Mrs. Gallagher looked over the top and saw the backhoe on the north side of Barcroft View Terrace. It had turned the corner and had "just about straightened out". She could see the upper part of the operator's body, but his lower part was hidden from her view by the front-end loader, the bottom of which appeared to be above the ground three or four feet, the top five or six feet. Mrs. Gallagher noticed that the backhoe was "sort of making a bouncing movement". She heard a cry and saw Creason's body roll out from behind the right rear wheel approximately 15 to 16 feet east of the corner and come to rest in the street about five or six feet farther east. The backhoe was still moving at 15 to 20 miles per hour. Mrs. Gallagher tried unsuccessfully to wave the operator to a stop, but he was apparently unaware of what had happened, and continued on his course along the north side of the street until he stopped 80 to 90 feet east of Creason's body.

K. W. Morey, a Fairfax County police officer, investigated the accident. He found a blood spot 23 feet east of the intersection, and the backhoe parked 97 feet east of the blood spot. He measured the width of the street at 57 feet, the width of the travel area between the cars parked on each side at 31 feet and the width of the travel area between the perpendicular parking space lines on each side at 21 feet.

Beard, aged 62 at the time of his deposition, was a retired Government employee. He was operating the backhoe as a favor for his son, Herman F. Beard, Jr., who transacted business as Beard Plumbing & Heating, owned the machine, and leased it to Kay. Beard was not paid for his services, although Beard, Jr., made gifts to him from time to time and helped with his rent. Beard and his son drove the backhoe to the Barcroft View Apartments on Sunday night before the Wednesday on which the accident occurred, and parked it in a designated place on the premises, where it remained when not in use until the work was completed.

Beard testified that Kay's construction supervisor, "Frenchie" (Armand) Morrissette, was his "boss" for the work, and gave him his instructions, that he worked for Morrissette on the afternoon of November 18 either digging a hole or moving a sidewalk, and that he understood that the next day he would be required to excavate in front of one of the apartment buildings. On November 19, at approximately 7:30 a. m., Morrissette ordered Beard to report to Building 3628, where Morrissette would meet him and "help" him. Morrissette did not describe the work to be done. Beard was proceeding to Building 3628 by the shortest available route when the accident occurred. Beard said that he had been operating a backhoe for 37 years.

After the accident, Beard said, Morrissette told him where to excavate, what length and depth to dig the hole, and where to put the dirt. Morrissette made suggestions about sloping the bank, and directed him to dig three feet farther back and move a bush. Once or twice Morrissette asked Beard "to lay it back a little bit . . . so he'd have a slope on it". Beard would have moved the machine or worked extra time at Morrissette's request, and would have followed, within reason, any instructions given by Morrissette as to his performance of the work. When Morrissette came on the earlier sidewalk job, on which Beard had operated the backhoe, "he took it over complete" and told Beard "everything from there on". Morrissette also closely supervised the excavation job. Beard recognized that Morrissette had the responsibility for seeing that the job was done properly and could require him to make any changes that were necessary to accomplish that purpose.

Morrissette described Beard's work at the apartment complex. Beard had used the backhoe there before November 19 and would use it again on and after November 19 in excavating a hole to enable Morrissette's workmen to re-waterproof the leaking wall of an apartment. That morning, Morrissette met Beard at the backhoe and told him to bring the unit to Building 3628. Over Kay's objection, Morrissette was...