Coleman v. Blankenship Oil Corp.

267 S.E.2d 143, 221 Va. 124, 1980 Va. LEXIS 223
CourtSupreme Court of Virginia
DecidedJune 6, 1980
DocketRecord 780859
StatusPublished
Cited by58 cases

This text of 267 S.E.2d 143 (Coleman v. Blankenship Oil Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coleman v. Blankenship Oil Corp., 267 S.E.2d 143, 221 Va. 124, 1980 Va. LEXIS 223 (Va. 1980).

Opinions

POFF, J.,

delivered the opinion of the Court.

We granted the appeal in this case to review the trial court’s order setting aside a jury verdict awarding the plaintiff $86,215 in damages for injuries sustained in an automobile accident. The trial court, holding that the evidence of primary negligence, contributory negligence, and proximate cause raised jury questions, had overruled the defendant’s motions to strike the plaintiff’s evidence. The verdict was rendered July 28, 1977. By final order entered March 22, 1978, the trial judge reversed his earlier ruling and held, as matters of law, that the plaintiff was guilty of contributory negligence and that the defendant’s negligence was not the proximate cause of the accident. On these grounds, he set the verdict aside and granted the defendant judgment non obstante veredicto. Being of opinion that the issues of contributory negligence and proximate cause turned upon questions of fact properly submitted to and resolved by the jury, we reverse the judgment.

The accident occurred in the Round Hill community on State Route 719 north of its intersection with State Route 7 which runs east and west. This intersection lies 75 feet east of a point on Route 7 where Route 719 continues south. North of this double intersection, Route 719 is a straight two-lane, blacktop road, running slightly upgrade. The posted speed limit was 25 m.p.h.

The accident happened about 3:15 p.m. on December 10, 1973, a clear, dry day. Approximately two hours earlier, Channing Herrell was driving a heating oil truck for his employer, the defendant Blankenship Oil Corporation. At a point 700 feet north of the intersection, he noticed oil spilling from the rear of the truck. After parking on the right shoulder, he discovered that the spillage was caused by a broken pin on a hose connection. While he was repairing the hose, an unknown passerby informed him that the fire department was washing the oil from the road. Herrell made no attempt to [127]*127verify the information. He told his employer what had happened, but neither reported the incident to the authorities.

The fire station is located on the west side of Route 719 north of the intersection. In response to an alarm, a fire truck was dispatched to a point south of the intersection to “washdown” the road. Olen Smith, one of the firemen on the truck, testified at trial that he did not notice oil on Route 719 north of the intersection. Efforts to wash the oil from the pavement were counterproductive, so the Highway Department sent a dump truck loaded with sand to the scene. Robert Foreback and two assistants spread sand along Route 7 at the intersection and north along Route 719 for a distance of 50 to 100 feet. At that point, they parked the orange-colored truck facing south, partly in the northbound lane and partly on the shoulder, and turned on the “four-way flashers” and a “fireball flasher”. Wearing a Highway Department hardhat, Foreback stood in the road and directed traffic around the truck. Since he considered the oil hazard obvious to motorists, he did not think it necessary to post warning signs or to close the road.

The plaintiff, traveling east on Route 7 toward the intersection, switched on her left turn signal and slowed down to allow a car approaching on Route 719 from the south to complete a right turn onto Route 7. She followed that car until it had passed through the double intersection. The plaintiff then turned left and proceeded north on Route 719. At trial she explained she had “never noticed anything unusual” going on because she had been “watching to make sure he was out of [her] way” before she turned.

Approximately 100 feet ahead, she saw two trucks facing her in her lane. She thought the first was painted green. She could not recall the color of the second, and she did not observe any flashing lights. Unable to see beyond the trucks, she stopped in the right lane. A man standing near the trucks looked to the north and motioned for her to pass in the left lane. Her car, a Plymouth Duster, was equipped with a manual transmission. Engaging the first gear and moving into the left lane, she saw an International Scout vehicle approaching from the north. For the first time, she noticed that the road appeared “all wet and shining” and she thought “they’re putting down tar and asphalt.” According to her testimony, when she returned to the right lane to avoid the oncoming vehicle, “I felt like the car was whipping, so I immediately took both feet off of the pedals” and “just held onto the steering wheel”. She explained that “people had told me” that this was the safest procedure “if you [128]*128hit ice.” “I wasn’t even traveling as much as 15 miles an hour,” she said, “because I still had it in first gear.”

Frank Entwistle, driver of the Scout, testified that “[t]he hard top was entirely covered” as if it “was freshly tarred or oiled”, and “my first thought was that the highway department was covering the road.” When he saw the Duster, “the back end started swerving” and “started going from lane to lane” and it was obvious to him that the driver “had lost control of the car.” He estimated its speed at “[a]bout 20 miles an hour.” His passenger “guessed” that the Duster “was probably going about 35 miles an hour.”

Entwistle shifted the Scout to a lower gear, slowed down, and stopped with the right wheels off the pavement. The plaintiff’s car traveled out of control for 200 feet before striking the left front of the Scout. The impact knocked the Scout back two feet; the Duster came to rest in the ditch on the east side of the road. Both vehicles were substantially damaged, and the plaintiff was severely injured in the collision.

Preliminarily, we note the defendant’s argument on brief that “the court ruled as a matter of law that the defendant owed no legal duty to the plaintiff, these duties having been assumed by the agencies of the sovereign.” We find no such ruling in the record. In its findings of fact, the trial court did state that “the fire company attempted to remove the substance from the road, and when its efforts failed, the Department of Highways assumed the task of correcting the condition . . . [and] the responsibility for directing traffic”. But at no time did the court rule that the defendant was thereby relieved of liability for negligence in depositing hazardous material upon a highway or for breach of the duty imposed by Code § 18.2-324 to “immediately remove the same or cause it to be removed.” Instead, the trial court based its decision solely on considerations of contributory negligence and proximate cause, both of which presuppose breach of a legal duty by the defendant. Thus, primary negligence is not at issue on this appeal.

The parties agree upon the scope of review of a jury’s verdict.

“[T]he power conferred on the trial judge under Code § 8-352 [now, Code § 8.01-430] to set aside a jury verdict and enter final judgment can only be exercised where the verdict is plainly wrong or without credible evidence to support it. If there is a conflict in the testimony on a material point, or if reasonable men may differ in their conclusions of fact to be drawn from the [129]*129evidence, or if the conclusion is dependent on the weight to be given the testimony, the trial judge cannot substitute his conclusion for that of the jury merely because he would have voted for a different verdict if he had been on the jury. The weight of a jury’s verdict, when there is credible evidence upon which it can be based, is not overborne by the trial judge’s disapproval.

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Bluebook (online)
267 S.E.2d 143, 221 Va. 124, 1980 Va. LEXIS 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coleman-v-blankenship-oil-corp-va-1980.