Moore v. Pitt-DesMoines, Inc.

• Decision Date: 09 August 2000
• Docket Number: No. A00A1812, No. A00A1813.
• Parties: MOORE v. PITT-DESMOINES, INC. et al. R & L Carriers, Inc. v. Pitt-DesMoines, Inc.
• Court: Georgia Court of Appeals

538 S.E.2d 155

245 Ga. App. 676

MOORE v. PITT-DESMOINES, INC. et al.

R & L Carriers, Inc. v. Pitt-DesMoines, Inc.

Nos. A00A1812, A00A1813.

Court of Appeals of Georgia.

August 9, 2000.

Reconsideration Denied August 28, 2000.

Certiorari Denied February 16, 2001.

Graydon W. Florence, Jr., Atlanta, for appellant (case no. A00A1812).

Drew, Eckl & Farnham, Bruce A. Taylor, Jr., Atlanta, for appellant (case no. A00A1813).

Swift, Currie, McGhee & Hiers, Kristine J. Moschella, James T. McDonald, Jr., James L. Creasy III, Atlanta, for appellees.

ELDRIDGE, Judge.

John W. Moore was a relief driver riding in a R & L Carriers, Inc. tractor-trailer driven by his co-worker Shawn Andre Searcey when the vehicle was rear-ended by a Pitt-DesMoines, Inc. tractor-trailer driven by Robert Thomas Cheatham. Moore collected workers' compensation from R & L Carriers for his injuries and sued Cheatham and Pitt-DesMoines for his injuries; R & L Carriers intervened to protect its subrogation lien. The trial court granted summary judgment to the defendants. We reverse, because there exists a jury issue as to negligence.

In the early morning hours of July 3, 1996, four tractor-trailers in convoy traveled west along Interstate 20 from South Carolina to Atlanta. The lead vehicle was a Pitt-Des-Moines tractor-trailer driven by Marvin Sharpe. The second vehicle was R & L Carriers' truck driven by Searcey with Moore as relief driver. In the third vehicle, another Pitt-DesMoines truck, was defendant Cheatham followed by a fourth vehicle and a third Pitt-DesMoines tractor-trailer driven by Ralph. While in convoy, the Pitt-DesMoines drivers, including Cheatham, kept in constant communication by CB radio. Searcey monitored the CB talk of the Pitt-DesMoines drivers and heard Cheatham on the CB.

About 4:15 a.m., as the convoy approached Augusta near the overpass and Exit 64 for the I-520 Bobby Jones Expressway Interchange, Searcey saw three broken 80-pound bags of cement in the road ahead with cement dust kicked up by vehicles in front of him; there was about two inches of cement dust lying on the road. Searcey was about 100 feet east of I-520 when he first saw the cement dust in the air. Searcey's truck was in the right lane, and another truck in the left lane caused the dust to become worse as they drove through it. At the same time that he saw the cement dust, Searcey heard Sharpe in the lead Pitt-DesMoines truck warn of the dust ahead over the CB; the evidence reflected that Sharpe had also seen a truck ahead drop the cement bags on the interstate. Searcey realized what was happening and woke Moore to warn him to brace himself. He was worried about hitting a car in the dust cloud and began pulling into the right emergency lane as soon as he cleared the overpass.

Richard T. Dedeaux was driving between 65 and 70 mph in his car when he came to the overpass and saw the cement dust. He was passing Searcey in the left lane, following another tractor-trailer, when he entered the cement dust. He saw the cement dust about ten to fifteen seconds before he hit the truck ahead of him. The car-truck collision was near where Searcey finally stopped, which was on the far side of the interchange beyond the overpass. The truck he hit kept going and never stopped after the collision. Mrs. Dedeaux stated that apparently Cheatham's truck was "flying towards us.... If they had been in our lane ... we would have been dead." Prior to the second collision, the R & L Carriers truck stopped to their right. After the second collision between the trucks, Dedeaux pulled his car over into the left emergency lane.

When Searcey first saw the dust on the overpass, he was driving 55 mph but immediately began slowing down because of the hazardous condition. At the time of impact, he had reduced his speed to about 20 mph when he was impacted from the rear. At the time of impact, he had pulled over into the emergency lane prior to stopping. When he cleared the overpass and was three-tenths of a mile away from the overpass, Searcey pulled into the emergency lane and began to stop. Cheatham followed Searcey into the emergency lane instead of staying in the right lane. Searcey stated that Cheatham's tractor-trailer was straight after impact, which in his opinion indicated that Cheatham's vehicle impacted Searcey's vehicle without stopping, because Cheatham's truck and trailer would have jackknifed. In Searcey's opinion, Cheatham was going 30 to 40 mph on impact. After impact, the R & L Carriers tractor was jack-knifed, the tractor sideways in the right lane and the trailer straight in the emergency lane.

Ralph, the third Pitt-DesMoines driver, successfully cleared the cement dust and stopped about three feet behind Cheatham. Two Pitt-DesMoines trucks, Searcey's truck, and another truck cleared the overpass and cement dust without running into anything. Ralph did this, although Cheatham and Searcey were piled up in the emergency lane and right lane, and Dedeaux's car was stopped in the left emergency lane.

According to Cheatham, he began to brake as he entered the cement dust on the overpass, but was unable to stop. He drove into the emergency lane and rear-ended the R & L Carriers tractor-trailer, which he followed. Cheatham denied hearing the CB warning to slow down and to look out ahead from the lead Pitt-DesMoines driver, Sharpe, although Searcey heard the warning. Cheatham testified that as he crossed the overpass he did not see anything ahead, but that when he came to the end of the overpass he drove into a thick fog. Cheatham claimed that the trucks were several hundred yards apart traveling along the interstate. He testified that he was at the speed limit and immediately began to break upon entering the dust cloud, which in his opinion dropped his speed to 30 or 40 mph; he was in the right lane. He saw a car's brake lights at his left front wheel; then, instantly the truck's taillights appeared ahead of him. He also stated that he saw the R & L Carriers vehicle stopped ahead of him on I-20 before he hit it, and he was in the right lane. Cheatham stated that immediately after the collision Sharpe, the first Pitt-DesMoines driver, came back and stated that he passed safely in the left lane and that the R & L Carriers truck was jackknifed in the right lane. However, Cheatham also testified that the third Pitt-DesMoines driver, Ralph, saw his wreck and pulled up beside his truck.

The plaintiffs' contention is that the trial court erred in granting summary judgment. We agree and reverse.

All drivers ... using the highways are held to the exercise of due care. A leading vehicle has no absolute legal position superior to that of one following. Each driver must exercise ordinary care in the situation in which he finds himself. The driver of the leading vehicle must exercise ordinary care not to stop, slow up, nor swerve from his course without adequate warning to following vehicles of his intention so to do. The driver of the following vehicle, in his turn, must exercise ordinary care to avoid collision with vehicles, both those in front and those behind him. Just how close to a vehicle in the lead a following vehicle, ought, in the exercise of ordinary care, be driven, just what precautions a driver of such a vehicle must in the exercise of ordinary care take to avoid colliding with a leading vehicle which slows, stops, or swerves in front of him, just what signals or warnings the driver of a leading vehicle must,

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