Stong v. Freeman Truck Line, Inc., 53936

Decision Date25 July 1984
Docket NumberNo. 53936,53936
Citation456 So.2d 698
PartiesMerripennie McMurry STONG, Administratrix of the Estate of Kirk Harrison Stong, Deceased, Appellant, v. FREEMAN TRUCK LINE, INC. and Charles I. Long, Appellees.
CourtMississippi Supreme Court

Brad Sessums, Young, Scanlon & Sessums, Jackson, for appellant.

Jimmie B. Reynolds, Jr., Whitman B. Johnson, III, Steen, Reynolds, Dalehite & Currie, Jackson, for appellees.

Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

This wrongful death action arises from a fatal motor vehicle accident occurring on Interstate Highway 55 in north Jackson in the early morning hours of July 4, 1980. On that occasion, Kirk Harrison Stong drove his automobile into an eighteen-wheeler stopped in the right-hand southbound lane of traffic and died. Trial resulted in a defense verdict. Appellant Administratrix' principal argument here is that she was entitled to a peremptory instruction on liability or, at least, on the negligence issue.

Identification of the standard of care by which to judge the Defendant trucker's conduct turns on whether the place where the accident occurred was within a "business district" within the meaning of state highway safety statutes and comparable federal regulations.

For the reasons explained below, we hold that the accident occurred outside a business district. As a matter of law a controlled-access, high-speed interstate highway is outside a business district, thus rendering applicable safety standards more stringent than might otherwise apply. The standards so identified become under our law the standard of conduct of a reasonable man. Violations constitute negligence per se.

At least five instructions submitted to the jury erroneously treat the business district issue as one of fact. Those instructions are so framed that the defense verdict could have been the product of the jury's decision that the accident happened within a business district, in which event the jury would never have reached the negligence per se issues. Because three of these instructions were given at the request of Plaintiff Administratrix, however, we cannot reverse on this point.

On this record all other issues were for the jury. We expressly reject Appellant Administratrix' claim that she was entitled to a peremptory instruction on liability. Likewise rejected is her argument that the jury should have been instructed peremptorily that Freeman/Long were negligent.

The boat she could have caught Administratrix has missed. Two jury instructions erroneously advise the jury that violation of the statutory standards was mere evidence of negligence, not negligence per se. These instructions were given at Administratrix' request after the Court had denied three negligence per se instructions. Thereafter, however, Administratrix requested and was granted two negligence per se instructions. Because she failed to withdraw the otherwise comparable mere-evidence-of-negligence instructions, Administratrix must be held responsible for any resulting confusion in the minds of the jurors. Again reversal is precluded.

We also consider here two assignments of error arising from the question whether Stong was intoxicated at the time of the accident. In the end, we affirm.

At least two of the points raised: (1) is an interstate highway ever in a business district and (2) are the results of a blood test for intoxication ever admissible in a civil action, are questions of first impression in this state. The interplay of federal highway safety regulations with our state statutes has likewise never been considered by this Court. Because these points are likely to arise in the future and are matters with respect to which the bench, bar and litigants need, and are entitled to receive, our guidance, we discuss the issues with some care.

II.

A.

The scene of the fatal accident is the westernmost or right-hand lane for southbound traffic on Interstate Highway 55 as it traverses the northern environs of the City of Jackson. To further pinpoint the location, the Holiday Inn North abuts the frontage road (as distinguished from I-55 itself) to the southwest of the accident scene. On the date in question Holmes Volkswagen Company adjoined the frontage road to the northwest. 1

Interstate Highway 55 in this and other areas is a part of the national interstate highway system. A significant feature of that system and this highway is that access to it is controlled or limited. Continuous, unobstructed traffic flow is its goal. Though the places of business abutting the frontage road are within a few hundred feet of the scene of the accident, access from I-55 can be had only by travelling to the nearest exit--that to the south being a mile away and to the north being 7/10ths of a mile.

Interstate Highway 55 is a four-lane divided highway, running generally in a north-south direction. Two lanes are provided for northbound traffic and two lanes are provided for southbound traffic, and it is the latter which are involved in the case at bar. The northbound and southbound lanes are divided by a grassy, depressed median area. The speed limit for the area in question is 50 miles per hour. There is no overhead lighting at night.

One driving through north Jackson on I-55 would observe numerous places of business on both the east and west sides. None of these places of business, however, abut or are contiguous to I-55 itself. Rather, they adjoin the frontage roads. On both the east and west sides of I-55 in the area in question there exists a two-lane frontage road. Each frontage road is separated from I-55 by another grassy depression and embankment. As indicated above, access from I-55 to the frontage road can be had only at the prescribed exits, none of which are in the immediate vicinity of the occurrence in question.

It all happened in the early morning hours of July 4, 1980, that is, somewhere between 1:45 and 2:00 A.M. An unlighted vehicle was stalled and apparently abandoned in the right (or west) lane of I-55 for southbound traffic. Lighting available in the area was sparse though how sparse was never made clear.

The scene being set, enter the players: Charles I. Long approached from the north driving an eighteen wheeler. Long's tractor and trailer were owned by Freeman Truck Line, Inc. Freeman is a Mississippi-based firm operating a motor transportation line for hire in interstate commerce. Long, employed by Freeman, was then engaged within the course and scope of his employment. Long was southbound from Memphis.

Minutes before arriving at the scene, Long received a radio communication from another trucker advising that a stalled, unlit vehicle occupied the right-hand lane for southbound traffic. As Long approached he observed the other truck, from which he had received the radio message, stopped on the shoulder of I-55 facing south but completely off of the main traveled portion of the highway. Long was in the right-hand lane--the one obstructed by the stalled vehicle.

Long slowed to a stop. He could not change lanes because there were faster southbound vehicles approaching in the left-hand lane from his rear. While stopped in the right-hand lane Long learned from the driver of the other truck that another southbound vehicle had just had a near-collision with the stalled, unlighted vehicle. At this time Long's truck was situated squarely within the right-hand (or westernmost) lane of I-55 for southbound traffic. To the west was a shoulder of sufficient width and apparent strength to support Long's truck had he wished to move it there. Instead Long turned on the red emergency flashers on his truck and got out. On the rear of Long's truck in addition to the emergency flashers were red reflectors whose visibility became a matter of dispute at trial.

By this time a police officer had arrived on the scene. Long, the other trucker and the police officer made an effort to push the stalled car off the highway. They did not succeed. Long then agreed with the others that a more effective warning for approaching southbound traffic needed to be put into place. The police officer would drive his car to the rear of Long's truck and turn on his flashing blue light.

At the time Long had in his truck three red, triangular reflectors of regulation size and design which he could have placed on the road as warnings to approaching traffic. It seems probable that the flashing blue light of the patrol car would be more likely to attract the attention of southbound approaching vehicles than would the reflectors. From the time Long stopped his truck until Kirk Harrison Stong's fatal entry upon the stage, no more than ten minutes elapsed, arguably less. Witnesses estimated that between 50 and 100 southbound vehicles successfully navigated the area without untoward incident.

As the police officer, blue light already flashing, sped north on the west access road preparatory to getting out on to I-55 and pulling up behind Long's truck, Stong approached. Stong had been at a pre-Fourth of July party. He had been drinking but the extent to which this was so remains a matter of great controversy. Perhaps his attention was diverted by the flashing blue lights of the police car speeding north and going the wrong way on the frontage road. We will never know, for Stong plowed straight into the back of Long's truck and suffered fatal injuries. Several eye witnesses testified that Stong was driving between 50 and 60 miles per hour and that he never applied his brakes before impact. No skid marks were found afterwards.

Stong was pronounced dead of massive head wounds approximately two hours later. A blood alcohol test, the subject of great controversy here, found Stong's blood to contain .17 grams of ether alcohol per 100 ml. of blood. About this more will be said later.

B.

On September 30, 1980, Merripennie McMurry Stong, administratrix of...

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