Simpson v. Lambert Brothers Div.-Vulcan Materials Co.

• Decision Date: 06 June 1966
• Docket Number: No. 9992.,9992.
• Citation: 362 F.2d 731
• Parties: Horace M. SIMPSON, Appellant, v. LAMBERT BROTHERS DIVISION — VULCAN MATERIALS COMPANY and Donald W. South, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

362 F.2d 731 (1966)

Horace M. SIMPSON, Appellant, v. LAMBERT BROTHERS DIVISION — VULCAN MATERIALS COMPANY and Donald W. South, Appellees.

No. 9992.

United States Court of Appeals Fourth Circuit.

Argued November 3, 1965.

Decided June 6, 1966.

Robert T. Winston, Norton, Va. (Shelby Smoot, Kingsport, Tenn., and Horace M. Simpson, on the brief), for appellant.

William T. Gamble, Kingsport, Tenn., and Andrew P. Miller, Abingdon, Va., for appellees.

Before SOBELOFF, BOREMAN and J. SPENCER BELL, Circuit Judges.

BOREMAN, Circuit Judge:

Horace M. Simpson was injured when run over by a heavy construction vehicle driven by Donald W. South, an employee of Lambert Brothers Division of Vulcan Materials Company. Simpson sued South and Lambert Brothers Division in the District Court for damages and a jury returned a verdict in favor of the defendants. The District Court denied Simpson's motion to set aside the verdict and grant a new trial. Simpson appeals and asserts that numerous errors were committed during the course of the trial. The defendants, appellees, contend that the District Court should have held as a matter of law that they were not liable to Simpson. For reasons to be stated we think the plaintiff is entitled to a new trial.

At the time he was injured, Simpson was employed by Pope Construction Company as foreman of an asphalt production plant which the company maintained on land leased from Lambert Brothers Division at the latter's quarry in or near the city of Bristol, Virginia.¹ Pope also purchased its needed amounts of crushed limestone, one of the basic ingredients of its product, from Lambert Brothers Division. The limestone was delivered by Lambert Brothers Division to a stockpile area near the asphalt plant. It was upon his return from the delivery of a load of limestone that South ran over and injured Simpson.

The vehicle which South was driving is referred to as a "dumptor." Unlike the more common type of dump truck, the bed in which material is carried is located in front of the driver's compartment rather than behind it. The driver's seat is located approximately over the right rear wheel. As a consequence of this design, the dumptor's driver, while able to peer forward across the top of the bed, has limited vision of objects close to the left front of the vehicle. While the extent of this blind spot is not precisely ascertainable from the record, it is clear from the testimony of South and from photographs in evidence that the driver could not see an individual, standing or walking, if within a fairly close range of the dumptor's left front portion. It was the left front wheel of the dumptor which injured Simpson.

The dumptor can also be operated in reverse and when so operated the driver's vision in the direction of the vehicle's movement is restricted only to the extent of the limit of his ability to turn his head to the rear while at the same time maintaining control of the steering wheel and other driving instruments.

In making and returning from their deliveries of limestone to Pope's stockpile, the vehicles of defendant Lambert were driven between the asphalt plant and a small inspector's shack which was located nearby. On a return trip, the shack lay to the left and the asphalt plant to the right of a vehicle operated in a forward direction. On the occasion of the accident a truck was parked beside the asphalt plant in a position which narrowed the available space through which the dumptor might pass to a width estimated by Simpson as approximately thirty feet. South and the driver of the parked truck estimated this space at approximately twenty feet. The dumptor itself is approximately ten or eleven feet wide. The dumptor was operating in a forward direction at a speed, according to South, of between seven and ten miles per hour.

In the course of his foreman's duties, Simpson made numerous daily trips between the asphalt plant and the inspector's shack. The door of the shack faced the asphalt plant. Just prior to the accident, Simpson had proceeded across the open space to the inspector's shack. According to his testimony, he stepped up into the shack, the floor of which was roughly six inches above ground level, and asked the inspector if the temperature of the asphalt suited him. The inspector gave an affirmative reply and handed Simpson a ticket, requesting that Simpson give it to the driver of the truck which was parked next to the asphalt plant. Simpson testified that he then turned around and stepped out of the shack,² whereupon he was struck by the dumptor.

Simpson estimated that his step out of the shack did not carry him more than two feet from its door before the accident occurred. Two witnesses to the accident testified that Simpson took one or perhaps two steps from the door before being hit. A third witness estimated that Simpson was four to five feet away from the door when he was struck. South estimated that there was a clearance of five or six feet between the dumptor and the shack and a clearance of three or four feet between the dumptor and the parked truck.

South testified that he did not see Simpson emerge from the shack at the time of the accident. From the facts already stated, it seems probable that South could not have seen Simpson even if he had been looking squarely in the direction of the door of the shack. South could not recall whether he had observed Simpson crossing from the asphalt plant to the shack just prior to the accident.

Simpson testified that he did not see the dumptor before it struck him. At this point it must be noted that, according to the evidence, Simpson had only ten per cent of normal vision in his right eye. He could not recall whether he had looked before stepping out of the shack. He further testified that the work operations of the asphalt plant produced a considerable amount of noise and that ordinarily the sound of passing vehicles could not be heard above the roar. The plant was operating at the time of the accident.

Error entitling plaintiff to a new trial inheres in the District Court's reply to an inquiry from the jury concerning the law of contributory negligence. Before the case was submitted to the jury, the court gave instructions on this subject which appear to be complete and adequate in all essential respects. The jury then retired to consider its verdict but subsequently returned to the courtroom and asked the following question:

"If we believe that the negligence of Mr. Simpson in any degree contributed to the accident, do we have to find for the defendant?" (Emphasis added.)

The court responded, without more, "Yes, you would if you feel that." Counsel for the plaintiff objected.

It is the established substantive law in Virginia that negligence on the part of a plaintiff does not bar his recovery if it contributes only slightly or trivially to his injury. See Cooke v. Griggs, 183 Va. 851, 856-857, 33 S.E.2d 764, 766 (1945); Yeary v. Holbrook, 171 Va. 266, 198 S.E. 441 (1938); Wright v. Perry, 166 Va. 222, 184 S.E. 206 (1936); Clinchfield Coal Corporation v. Osborne's Adm'r, 114 Va. 13, 75 S.E. 750 (1912).

In Yeary v. Holbrook, supra, the defendant requested an instruction which contained the identical phrase we find objectionable here, stating that negligence on the part of the plaintiff would preclude his recovery if it proximately "contributed to the accident "in any degree.'" The trial court amended the instruction by adding the word "substantial" so that the phrase read, "in any substantial degree" and it was given to the jury in the amended form. The Virginia Supreme Court, after criticizing the instruction in the form as requested, approved it as given and stated:

"* * * The clear, unequivocal meaning of the instruction, as given, is that the negligence

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