W.J. Runyon & Son, Inc. v. Davis, 89-CA-1284

Decision Date22 July 1992
Docket NumberNo. 89-CA-1284,89-CA-1284
Citation605 So.2d 38
PartiesW.J. RUNYON & SON, INC. v. Steve L. DAVIS.
CourtMississippi Supreme Court

Suzanne N. Saunders, Sheila Roberts Fortenberry, Saunders Bell Fortenberry & Corson, Patricia Trantham, Jackson, for appellant.

Crymes G. Pittman, Joseph E. Roberts, Jr., Cothren & Pittman, Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and ROBERTSON and SULLIVAN, JJ.

ROBERTSON, Justice, for the Court:

I.

This case arises from a serious motor vehicle accident. One seemingly central issue is whether a highway subcontractor is liable, vicariously, for the conduct of its asphalt hauler truck driver. The Circuit Court answered in the affirmative and instructed the jury accordingly, and thereafter entered judgment on the substantial damage award the jury returned.

We affirm.

II.

A.

Back in the early 1980s, Highway 61, north of Vicksburg, was but two lanes. The State decided the highway should be four-laned but instead of expanding the existing highway, the Highway Department proposed to lay a new roadbed and construct two separate lanes, separated by a median strip from fifty to seventy feet in width. The new lanes would ultimately carry southbound traffic toward Vicksburg. In July of 1985, Key Constructors, Inc. held and was performing a contract to complete a four and a half mile section of the new southbound lanes, including the bridge work, dirt, base and paving work. Key had subcontracted out the base paving work to W.J. Runyon & Son, Inc., Defendant below and Appellant here.

July 11, 1985, was a hot, dry, dusty summer day. Nearby convenience store owner Roy Safir walked outside and said he could taste the dust. "When the trucks would come through, the dust would get thicker." Adjacent resident Cathy Shows said sometimes the dust was so bad when the school bus came she could not see the bus until it stopped at the driveway. It was in this setting that Runyon was laying asphalt on the new roadbed, to the west of the existing two-lane highway. The job site was serviced by seven or eight asphalt dump trucks Runyon had engaged, each of which loaded at Runyon's hot mix plant south of Vicksburg and then traveled to the construction site north of town. Runyon laid about 100 tons of asphalt an hour--about four or five truckloads an hour. While on the new roadbed and traveling back and forth to the existing roadways, these trucks kicked up considerable dust on a hot, dry day, though the extent and exact location thereof were considerably disputed.

In July of 1985, Steve L. Davis was in his mid-twenties and lived in Richland, Mississippi. He had spent the morning of July 11 remodeling his grandparents' cabin at Eagle Lake north of Vicksburg. Davis was employed by Challenger Electric Corporation in Jackson and was due to report at 3:30 o'clock that afternoon for his shift. He left Eagle Lake somewhat before 2:00 p.m., thinking he had plenty of time to make it back to Jackson and get to work on time. Davis was driving a small Ford pickup truck, his traveling companions being three pets, a greyhound and two kittens.

Davis crossed the Yazoo River Bridge on Highway 61 traveling south and saw the first of the usual construction warning signs. He had traveled the area before and was aware of the construction zone, although it had not theretofore been a problem as the new road was being built some fifty to seventy feet to the west of the existing highway. Davis proceeded southward, driving through a school zone and up over a large hill. As he crested, he saw the construction ahead and to his right and saw the dirt and dust in the air, but it was all well west of his lane of travel. Davis was not concerned. Davis was traveling approximately 55 miles an hour at this point. He took his foot off the gas pedal but did not brake as he neared the construction area. In his words,

As I came down the Highway 61 that I was getting closer to the dust, I was still coasting. I was not braking or accelerating. I was just coasting through there and I was slowing down. And the dust was close to the road but it wasn't up on the road. The thick cloud, in my opinion, as I believed at that time in my judgment, was that there was work going on apparently on the edge of the median or in the median or on the shoulder of the road that they were building, that they were kicking up a lot of dust, and there must have been some enormous equipment in there churning up the road or grading or whatever they were doing, I didn't know. But there was a lot [of] dirt. I was not alarmed because I thought that it was just because they were working over there and making all the dirt. I did not see anything to tell me that there was going to be a truck to pull out. I didn't even see a truck.

. . . . .

And I--as I went on down, all of a sudden it just [came] in as fast as you could blink your eye or just a split second's time, a big blanket or bank or wall of dirt, whatever you would call it, you couldn't see through it, it was just invisible. It just poured out onto the road, a big massive cloud of dust. And it was very thick. And at that time I saw it I had just checked my side view mirror and I noticed the front of the left side of the road was where the dust got super thick and the road was disappearing. And as my eyes moved over I saw the road disappearing before my very eyes. I mean it was just--it was going just as fast as it was going. I could see it leaving, you know.

Davis said the road disappeared in less than a second, and he doesn't remember if he even reached the brake pedal. He said he saw no warnings about trucks entering the highway.

Davis has no memory of it, but his truck had smashed into the rear of a thirty-five foot Mack truck, an asphalt carrying and dumping truck, owned and driven by Ernest L. Whigham. It seems Whigham had just finished delivering and unloading his load of asphalt and had crossed the median area to the east and had turned onto the existing roadway, heading south. Whigham acknowledges the dust was heavy following his unladen truck when he pulled on to the highway. He admits after he pulled out he could not see in his rearview mirror because of the dust. He was proceeding ahead, having shifted into fourth gear, accelerating up to about twenty-five miles per hour and had covered no more than forty to fifty feet when he felt a thud on the rear of his truck.

The next thing Davis remembers, after reaching for his brakes was coming to,

being in my truck and there was the sound of dirt and metal and glass, all that settling kind of like--just a horrible sound. It was just like--it was the sound of destruction or the aftermath of destruction or whatever. There was just an awful silence of just dust and glass and dirt and whatever settling. And then I couldn't open my eyes. I could not see what was going on because I couldn't open my eyes and I couldn't move. And I could hear but I couldn't see. And someone, I don't know how long I was out or whatever, but someone came up and said that I had been in an accident and I was going to be okay, that help was on the way.

Davis said he remembers passing out and then waking to hear someone talking about his dog. He said he passed out again and then came to when someone told him they were placing him on a Lifestar helicopter to take him to University Hospital. Davis said he learned later that he was transported to Mercy Hospital by ambulance and was there for five hours before being transported by helicopter to University Hospital. The next time he woke up he was holding his wife's hand.

The extensive details of Davis' hospitalization and treatment and long road to recovery are too much to recount in full. They are less than pleasant, and we afford but a sampling. Because his jaw was broken in four places and his chin crushed, Davis was placed on a breathing machine. He also had a tracheostomy. His ribs were bruised and he developed "a pneumonia condition" where his temperature was around 105 for several days. Davis had fractured his neck and skull, had almost bitten his tongue off and had swallowed it. His stomach had been cut open to explore for internal bleeding; he left leg was broken and a seven inch portion shattered. Davis' kneecaps and feet were severely crushed and cut and his right big toe had been cut severely. His right eye was crushed and his left ear canal filled with blood. Davis said he was discharged from the hospital on August 13.

Upon discharge, Davis went to his home in Richland, where his wife and grandfather took care of him. His parents live just one door down, so they were also available to help. Davis finally returned to work in February, 1986, a week after getting off crutches because the family was about to lose everything and desperately needed money. Challenger changed Davis' duties, as he couldn't do all he once did. He could not lift anything over fifty pounds, and couldn't jump, run or place excessive stress on his body. He said he had problems going up ladders and problems squatting down.

In June, 1988, the doctors put Davis in the hospital to remove the rod from his leg. He returned to work in the following August. The doctors did not take the wires out of his chin until March, 1989. He has had extensive dental work done as a result of the accident and expects more. Davis said he used to participate in many sports but is unable now. Every morning his hip and knees are stiff. He has trouble looking in certain directions because of his neck injury, and has problems with his mouth and jaw.

Davis lost his job in September, 1989, because he exceeded Challenger's rule limiting the number of days an employee can miss in a year's time because of medical treatment needed after an accident. At the trial, about two weeks after losing his job, Davis said he had not been able to find other employment. Davis said he lost $21,158.67 in wages while employed because of the...

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