Marshall v. Goughnour

• Decision Date: 28 August 1980
• Docket Number: No. 781101,781101
• Citation: Marshall v. Goughnour, 269 S.E.2d 801, 221 Va. 265 (1980)
• Parties: Mortimer M. MARSHALL, Administrator, etc. v. Ronald Irvin GOUGHNOUR. Record
• Court: Virginia Supreme Court

Page 801

269 S.E.2d 801

221 Va. 265

Mortimer M. MARSHALL, Administrator, etc. v.Ronald Irvin GOUGHNOUR.

Record No. 781101.

Supreme Court of Virginia.

Aug. 28, 1980.

B. Waugh Crigler, Culpeper (Davies, Crigler, Barrell & Will, Culpeper, on brief), for appellant.

John J. Brandt, Arlington (Slenker, Brandt, Jennings & Johnston, Arlington, on brief), for appellee.

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

COCHRAN, Justice.

John Thomas Long, an employee of the Virginia Department of Highways and Transportation, was performing his assigned duties when he was struck and fatally injured by an automobile operated by Ronald Irvin Goughnour.Long's personal representative brought this wrongful death action for damages alleged to have been by caused by Goughnour's negligence.

A jury trial resulted in a verdict for the defendant.The trial court, overruling the plaintiff's motion to set aside the verdict, entered final judgment for Goughnour.On appeal, the personal representative challenges the rulings of the trial court in refusing to admit evidence as to Long's wages and in giving an unavoidable accident instruction to the jury.As Goughnour has been awarded a jury verdict, we will summarize the evidence in the light most favorable to him.

The accident occurred shortly before 3:00 p. m. on July 21, 1977 when Long and a fellow employee, Russell Waldren, were working on the Brandy Station exit ramp leading from the northbound lanes of Route 29 in Culpeper County.The ramp extended uphill in a sharp curve to the right for drivers using this exit.

Waldren testified that prior to the accident he had been sweeping sand and gravel from the ramp with a power broom attached to a tractor while Long was using a hand broom to sweep within a foot or so of the curb where the power broom could not reach.Waldren parked the broom tractor on the right-hand shoulder off the hard surface of the ramp, helped Long sweep by hand, and began to walk diagonally across and down the incline of the ramp towards the parked tractor.He saw a car come around the curve "a little bit wide" and heard a "faint tire noise".Waldren could see that Long was working at the fog line on the left-hand side of the ramp and was facing away from the car, but he could not determine on which side of the line Long was standing.Although the car blocked Waldren's view of the impact, he heard a "thump," observed the vehicle swerve to the right, and then saw Long's body lying in the road.Long was wearing a safety hat and an orange safety vest at the time of the accident.There were no safety cones or flags on the ramp.According to Waldren, on Route 29 approximately 500 feet south of the exit ramp there were signs posted warning motorists of highway work ahead.His testimony as to the location of other warning signs was confusing.

Waldren testified that after the collision the automobile stopped in the middle of the road and the driver, Goughnour, got out.In discussing the accident with Waldren as they awaited the arrival of the rescue squad, Goughnour said that before the collision he had been trying to get a card to write something down concerning his business.

The investigating officer, State Trooper A. P. Edwards, testified that Long could have been seen at a distance of 245 feet by an approaching driver, if the driver had been looking to his right.Edwards introduced into evidence several photographs that he had taken at the scene before Long's body was removed.One or more of these photographs showed the left-hand fog line close to the left curb of the ramp and the broom tractor off the hard surface on the right side.Edwards also testified to two conversations he had with Goughnour, in one of which Goughnour said that while he had been "fumbling" in his pocket just before he saw Long he did not take his eyes off the road.The officer did not see any warning signs on the ramp.He identified in the photographs two skid marks located on either side of the left-hand fog line.As measured by Edwards, the width of the traffic lane on the ramp at the site of the accident was 16 feet and the total width of the roadway at that location was 27 feet.The sky was hazy and the road was dry.

E. J. Oulette, Assistant Resident Engineer of the Culpeper District of the Department of Highways and Transportation at the time of the accident, arrived approximately 30 minutes after the collision and made an investigation for the Department.His diagram of the site of the accident showed a sign marked "Road work ahead" posted on Route 29 approximately 800 feet south of the exit ramp and another marked "Men working 25 MPH" with a red flag on it, located on the right side of the deceleration lane just before it merged into the exit ramp.Although they were available, no safety cones were on the ramp when Oulette made his investigation.

Goughnour testified that there were no safety cones, flagmen or other warnings on the exit ramp.He vaguely remembered seeing one sign posted on Route 29 warning of road work, but he did not see any warning sign on the deceleration lane.He was not familiar with the exit.Goughnour's primary purpose in leaving Route 29 was to purchase gasoline, but he also planned to telephone a business associate in Reston.He had intended to use an exit south of the Brandy Station exit, but he had inadvertently passed the turn-off.When he saw the Brandy Station exit sign, he reached in his pocket for a piece of paper to make sure that it contained the telephone number of his business associate, but he did not take his eyes off the road.According to Goughnour, he turned into the exit ramp, saw in front of him a sign with an arrow indicating a sharp curve to his right, placed both hands on the steering wheel, and applied his brakes.He"turned the corner and there was a guy, right in the middle of the road".He"stood on the brake and . . . cut the wheel", but heard the "thud" of the collision.The impact dented the top of the left front fender of Goughnour's automobile.

Instructions on negligence and contributory negligence were given to the jury without objection.Moreover, an instruction was given, without objection, informing the jury that the mere fact that there has been an accident does not entitle the plaintiff to recover, but in order to recover the burden is upon the plaintiff to prove by a preponderance of the evidence that the defendant was negligent and that his negligence was a proximate cause of the accident.As to InstructionNo. 15, ¹ however tendered by Goughnour, counsel for the personal representative said, "Your Honor, I don't believe the unavoidable accident doctrine would apply in this case".The trial court gave the instruction as consistent with the defendant's theory of the case.

Goughnour first contends that counsel for the personal representative failed to object to InstructionNo. 15 with reasonable certainty as required by Rule 5:21, and that we should not now notice the objection.We disagree.

The purpose of the rule is to give the trial court an opportunity to rule intelligently and avoid unnecessary appeals, reversals, and mistrials.Reid v. Baumgardner, 217 Va. 769, 773, 232 S.E.2d 778, 780(1977).When counsel for the personal representative challenged the applicability of the unavoidable accident doctrine, the trial court replied that Goughnour's testimony, if believed, would make the doctrine applicable, because, according to Goughnour, Long was in the middle of the road when Goughnour "looked up" and saw him, and the accident was unavoidable on Goughnour's part.There could have been no misunderstanding by the trial court of the basis for the objection.Subsequently, in his motion to set aside the verdict, the plaintiff, citing Bickley, Adm'x v. Farmer, 215 Va. 484, 211 S.E.2d 66(1975), andBatts v. Capps, 213 Va. 174, 191 S.E.2d 227(1972), assigned error to the granting of InstructionNo. 15 on the ground that there was no evidence to support it.The trial court was thus afforded the opportunity to reconsider its decision to grant the unavoidable accident instruction.We hold that the objection to the instruction was made with sufficient specificity to survive the strictures of Rule 5:21.We now determine whether the trial court erred in granting the instruction.

We have clearly established the principle that in automobile accident cases it is rarely permissible to give an unavoidable accident instruction.Nevertheless, we have declined to abolish the doctrine of unavoidable accident or to limit it to cases involving accidents resulting from unknown causes.Holbert v. Evans, 209 Va. 210, 163 S.E.2d 187(1968).

In Holbert, we approved the giving of an unavoidable accident instruction.In that case, however, because of his age the infant plaintiff could not be charged with negligence and there was evidence from which the jury reasonably could have found the defendant free of negligence.Thus the jury could find that the accident occurred without negligence.SeeBarner v. Whitehead, 204 Va. 634, 133[221 Va. 270] S.E.2d 283 (1963);Mawyer v. Thomas, 199 Va. 897, 103 S.E.2d 217(1958).

Unless the evidence supports a reasonable theory that the accident could have occurred notwithstanding the exercise of due care by the parties involved, it is error to give an unavoidable accident instruction.Bickley, Adm'x v. Farmer, 215 Va. 484, 488, 211 S.E.2d 66, 69-70(1975);Batts v. Capps, 213 Va. 174, 175-76, 191 S.E.2d 227, 228(1972).We recently held, therefore, that where the jury could have found from the evidence that a two-car collision resulted either from the negligence of one of the drivers or from the concurring negligence of both the court committed reversible error in granting an unavoidable accident instruction.Damron v. Hagy, 220 Va. 455, 457, 258 S.E.2d 517, 518(1979).

Applying these principles to the evidence in the present case, we conclude that...