McDowall & Wood, Inc. v. Kilby

• Decision Date: 18 January 1971
• Citation: 211 Va. 476,178 S.E.2d 497
• Court: Virginia Supreme Court
• Parties: McDOWALL & WOOD, INC. v. Maury W. KILBY.

Page 497

178 S.E.2d 497

211 Va. 476

McDOWALL & WOOD, INC. v. Maury W. KILBY.

Supreme Court of Appeals of Virginia.

Jan. 18, 1971.

Philip M. Sadler, Pulaski (Roby K. Sutherland, Gilmer, Sadler, Ingram, Thomas & Sutherland, Pulaski, on brief), for plaintiff in error.

Stuart B. Campbell, Jr., Wytheville (Campbell & Campbell, Wytheville, on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON and COCHRAN, JJ.

SNEAD, Chief Justice.

Maury W. Kilby, appellee, initiated an action against McDowall & Wood, Inc. (McDowall), the general contractor on a highway project, to recover damages for personal injuries he sustained when a car he was driving ran into a ditch across a closed portion of U.S. Route 11 (now Interstate 81) in Wythe County. The ditch had been dug by McDowall during the course of construction. A jury trial was had and a verdict was returned in favor of Kilby for the sum of $70,000. The trial court overruled McDowall's motion to set aside the verdict and entered judgment thereon. We granted McDowall a writ of error to that judgment.

McDowall has resolved its assignments of error into these questions:

'(1) Did plaintiff (Kilby) prove primary negligence on the part of defendant (McDowall)?

'(2) Was plaintiff guilty of contributory negligence and/or assumption of the risk as a matter of law?

'(3) Did the Trial Court err in giving Instructions Nos. 1, 2--A, and 3 * * * over the objection of the defendant?'

McDowall had a contract with the State Highway Department to rebuild and relocate a section of Route 11 so that it would conform to interstate highway standards. Route 11 was a four-lane highway running east-west in Wythe county and was composed of dual lanes divided by a 100-foot wide grass median. On June 26, 1967 it became necessary to close the two westbound lanes to vehicular traffic between a point west of Fort Chiswell where Route 11 intersected with Route 52 and a point east of Fort Chiswell where it merged into Interstate 81, a distance of about two miles. At both ends of the closed section, appropriate signs and barricades were erected, and westbound traffic was diverted into the eastbound lane of Route 11.

Witnesses for McDowall testified that black and white striped barrels had been placed at the crossovers connecting the eastbound and westbound lanes within the closed area to indicate the crossovers were closed.

In the restricted area, the eastbound lane was divided by solid double yellow lines, and signs were posted stating 'two-way traffic', 'no passing', and a speed limit of 25 miles an hour.

On June 30, 1967 McDowall, pursuant to the terms of its contract, commenced excavating a ditch across the closed westbound lane in order to install a box culvert. At the time of the accident the ditch was approximately 20 feet wide and 15 feet deep.

On July 10, 1967 State Trooper Maury W. Kilby was working the midnight shift. As a part of his duties he was responsible for patrolling Interstate 81 and Route 11 in Wythe county. At approximately 5:00 a.m., he left Wytheville and proceeded east on Route 11. The weather was foggy in the area. When he arrived at Fort Chiswell, the fog had 'gotten very bad' and 'it seemed to be a rolling fog'. Kilby decided, after passing Fort Chiswell, that since the fog was so dense he would return to Wytheville and have breakfast. He then proceeded to the first crossover connecting the eastbound and westbound lanes of Route 11, turned left onto the closed westbound lane, drove about 500 feet and then into the ditch dug by McDowall.

Kilby testified that his headlights 'penetrated very little through the fog' but they focussed on a pile of dirt on the west side of the ditch. He then realized that 'it hadn't been filled' and 'jammed his brakes...