Present: All the Justices 

ROBERT RAYMOND HARRAH, 

ADMINISTRATOR, ETC. 

OPINION BY JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 952312 November 1, 1996 

JAMES E. WASHINGTON, JR., ET AL. 

FROM THE CIRCUIT COURT OF LOUISA COUNTY 

F. W. Harkrader, Jr., Judge 

 In this action seeking recovery for a wrongful death 

occurring during a series of motor vehicle accidents on a fogshrouded mountain, we consider issues of primary negligence, 

unavoidable accident, sudden emergency, and applicability of the 

statute dealing with stopping vehicles on highways. 

 Appellant Robert Raymond Harrah, Administrator of the Estate 

of Peggy E. Harrah, Deceased, filed this action against appellees 

James E. Washington, Jr., and Rite Cable Construction, Inc., 

seeking damages for the wrongful death of the plaintiff's 

decedent. The plaintiff alleged that on April 20, 1992 the 

decedent, his wife, was operating an automobile proceeding in an 

easterly direction ascending the western slope of Afton Mountain 

on Interstate 64 in Augusta County. The plaintiff further 

alleged that defendant Washington, an employee acting within the 

scope of his employment with the corporate defendant, was 

operating a truck that was stopped in the eastbound lane of I-64. 

 The plaintiff further alleged that Washington's negligence 

at the time and place caused the decedent's death. In responsive 

pleadings, the defendants denied Washington was guilty of 

negligence and denied they owed the plaintiff any sum. 

 In an August 1994 trial, a jury found in favor of the 
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defendants. Overruling the plaintiff's post-verdict motions, the 

trial court entered judgment on the verdict. We awarded the 

plaintiff this appeal from the September 1995 final order. 

 Following established appellate procedure, we shall 

summarize the evidence, some of which was conflicting, in the 

light most favorable to the defendants, the prevailing parties 

below. 

 Interstate 64 crosses Afton Mountain in a generally eastwest direction. There are two eastbound travel lanes, separated 

by a broken white line, with a "breakdown shoulder" adjacent to 

the right lane. The accident in question occurred in an 

eastbound lane on a long, gradual, sweeping curve to the left 

near the top of the mountain. A wide median, with grass and 

bushes, separates the eastbound and the westbound lanes. 

 Although the weather conditions were constantly changing on 

the slopes of Afton Mountain during the morning of the day in 

question, the evidence showed that visibility near the scene at 

the time of the 11:15 a.m. incident was greatly reduced by fog. 

An investigating police officer testified the "weather was very 

foggy," saying he had not encountered worse fog in the area 

during the 17 years he had been assigned there. 

 Prior to the incident in question, a series of fog-related 

accidents had occurred in the westbound lanes of I-64 on the 

western slope of the mountain. A Waynesboro volunteer rescue 

squad crew had been dispatched to render first aid there. A 
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crew-member testified that as he was riding in the rescue 

vehicle, proceeding eastbound up the mountain on I-64 in an 

effort to find the westbound "wreck," "the only way we could see 

the wreck is if you looked out the driver's side. You couldn't 

see it coming head on." 

 Eventually, the crew "found the front of the wreck." The 

rescue vehicle's driver stopped "the crash truck" partly on the 

narrow left shoulder of the eastbound lanes. Part of the vehicle 

rested in the travel portion of the left eastbound lane that was 

11 feet 3 inches wide. 

 The "crash truck" was a heavy vehicle 30 feet long, 8 feet 

wide, and approximately "11 foot tall." It was "predominantly 

white with green stripes." Testimony showed that the lighting on 

the rear of the vehicle included six red emergency lights, three 

on each side, with "four of them going on and off and two of them 

being . . . like a strobe." A photograph received in evidence of 

the rear of the vehicle appears to show ten red lights (five on 

each side) as well as two large strobe lights near the top (one 

on each side) and two smaller white lights near the bottom (one 

on each side). 

 Approximately ten minutes before the accident sued upon, 

State Trooper Frank Pyanoe, rushing from Staunton to the scene of 

the westbound accidents, travelled eastbound on I-64 until he 

"came upon" the stopped crash truck. He said it "extended out to 

the travel area" of the left eastbound lane. He noticed "a major 
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accident over on the westbound side." The officer stopped his 

police vehicle behind the rescue squad truck because "there were 

no emergency lights flashing at the time" on the truck. 

 During a conversation between the trooper and a rescue squad 

member over "some type of electronic . . . difficulty with the 

vehicle," the trooper advised the member that "he either had to 

turn the lights on or move to a safer spot, preferably over to 

the right side of the interstate." Immediately, the lights were 

activated. 

 The trooper, driving a 1988 Ford Crown Victoria police 

cruiser, then proceeded "entirely in the eastbound lanes on the 

left-hand side" around the crash truck to go to the westbound 

accident scene. At this time, "the accident had not begun in the 

eastbound lane." 

 Defendant Washington, age 38 and a Louisa County resident, 

left the corporate defendant's Charlottesville office near 8:00 

a.m. on the day in question to travel to Staunton to pick up two 

rolls of cable. The defendant drove his employer's white Dodge 

Ram truck that had been modified with a "work cab" for storing 

tools. He was towing a red two-wheel trailer that was ten feet 

long and about seven feet wide. 

 Washington testified that, as he crossed Afton Mountain 

travelling westbound on I-64 en route to Staunton, it was raining 

and there was "very dense fog on the mountain itself. It was 

bad." 
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 After loading the cable on the trailer in Staunton, 

Washington proceeded to return to Charlottesville, travelling 

eastbound on I-64. Washington testified that when he reached the 

foot of the mountain on the west near 11:00 a.m., the weather was 

not "bad" although, he said, "I knew it was bad on the mountain 

because I just came across it." 

 Proceeding up the mountain, defendant had the vehicle's 

lights "on." As he "went up, it got foggier," so he turned his 

"flashers on." Driving in the right eastbound lane at a speed of 

30-35 miles per hour, he "got behind a tractor-trailer." He said 

that because the "weather was real bad and [he] couldn't see very 

far," he decided to pass the truck in order "to see better" and 

to know where he was "headed." He testified that he activated 

his left-turn signal, looked into his left side mirror, and, 

seeing no vehicle to his left, "proceeded to the left-hand lane." 

 When Washington reached the left lane, he saw flashing 

lights about 50 yards ahead in the left lane. Washington said, 

"it looked as if there were two ambulances up there." He slowed 

his vehicle and stopped in the left lane because he "couldn't go 

any further at that time" due to "traffic in the right-hand 

lane." Then Washington "looked in the mirror" and saw a white 

automobile "on the left-hand side of the road off onto the 

median." This was a 1990 Honda Accord operated by the witness 

Deborah F. Branstetter. 

 Branstetter had been travelling eastbound in the left lane 
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of I-64. She described the weather conditions at the time as 

cool and "very overcast." The pavement was dry and there was 

"fog on the mountain." She said the density of the fog would 

change; visibility improved and "then it would become very thick 

suddenly." As she ascended the mountain, Branstetter gradually 

reduced her speed from 65 to 35 miles per hour. 

 The witness observed defendant's vehicle ahead in the right 

lane. As she was in the process of overtaking it, and when her 

vehicle was "even" with defendant's trailer, she could see lights 

burning on the rear of defendant's truck. At that point, 

Washington "simply changed lanes." She said that "he did not 

give a signal." A state trooper testified that a vehicle's "turn 

signals are cancelled out" when four-way emergency "flashers" are 

activated. 

 According to Branstetter, there was no contact between the 

vehicles because she swerved "out of the way of the trailer into 

the median strip." She stopped her vehicle with all four wheels 

in the grassy median. 

 Alighting from his stopped truck, Washington ran back to the 

Honda and asked the operator "what had happened." She responded, 

"You ran me off the road." After determining that she was "all 

right," Washington ran back to his vehicle and moved it forward 

in the left lane "a very short distance. A few feet at the most." 

 Washington testified that he desired to move to the right lane 

but could not because of traffic there and that he "couldn't go 
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further up because of the crash truck that was in front of me." 

 "Shortly" after he moved his truck forward, Washington 

looked "into the mirror" and saw a "gray Cadillac coming," which 

struck his trailer and truck from the rear. This vehicle was 

operated by the witness David L. Gooden, who was travelling 

eastbound on I-64 in the left lane. 

 Gooden said that as he ascended the western slope of the 

mountain, the weather conditions changed as he left the bottom of 

the mountain; the fog "got thicker at the top." He testified 

there "were spots that you couldn't hardly see at all and spots I 

could see probably 20 yards." As Gooden came out of "a real 

dense area of fog," he observed defendant's "pickup with a 

trailer" stopped 20-25 yards ahead in the left lane. Gooden 

"hit" his brakes but, travelling at a speed of 45 miles per hour, 

struck defendant's vehicle. 

 After being struck by the Gooden vehicle, Washington "got 

out" of his truck to assist a passenger in the Gooden vehicle who 

was having difficulty extricating herself from the automobile. 

At this moment, another automobile crashed into the Gooden 

vehicle. This was a 1989 yellow Cadillac Seville operated by the 

plaintiff's decedent. 

 The collision of the decedent's vehicle with the Gooden 

vehicle caused the Gooden passenger and a rescue squad member to 

be pinned under the Gooden vehicle. Washington, rescue squad 

personnel, and bystanders joined in lifting the gray Cadillac, 
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freeing the trapped persons. Shortly thereafter a white truck 

"came through" and collided with the decedent's vehicle. This 

truck was a Ford Ranger pickup operated by the witness Paul W. 

Burch. 

 As Burch proceeded eastbound on I-64, the weather "was 

pretty sunny at the bottom and increasingly cloudy going up the 

mountain." According to Burch, "it was very foggy" at "the top 

of the mountain" until "there was no visibility whatsoever." 

Travelling at a speed of 25 to 35 miles per hour in the left 

lane, Burch applied brakes when "the visibility was reduced to 

almost nothing," and struck the decedent's vehicle without seeing 

it. 

 Riding in the vehicle operated by the plaintiff's decedent, 

age 43, were the Harrahs' two children and their paternal 

grandmother. The grandmother was seated in the front passenger 

seat as they drove in the left, eastbound lane ascending the 

mountain. She testified the decedent was driving about 30 miles 

per hour with the headlights burning "because of the fog." At 

the time of impact with the Gooden vehicle, the grandmother's 

attention was directed to the children riding in the back seat. 

She described the impact as "light because it did not knock any 

of us out of our seat belts." Following the impact, the decedent 

said, "What have we hit"? 

 After the collision, the decedent and the grandmother became 

involved in assisting the children from the vehicle, which was on 
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the roadway, to the grassy median. Shortly thereafter, as 

Burch's truck struck the decedent's vehicle, a rescue worker "saw 

what appeared to be a body fly through the air." This was the 

decedent, who was seriously injured and found "draped across" the 

red trailer. 

 At the conclusion of all the evidence, the court denied the 

plaintiff's motion to strike the defendants' evidence on the 

issue of liability. Then, the court gave the jury a profusion of 

31 instructions. Among the issues covered in the jury charge 

were Washington's primary negligence, the decedent's contributory 

negligence, proximate cause, superseding and intervening cause, 

concurrent negligence, unavoidable accident, sudden emergency, 

and duties of drivers of vehicles stopping on highways. 

 On appeal, the plaintiff first argues the trial court "erred 

by not ruling, as a matter of law, that defendant Washington was 

negligent when he failed to keep a proper lookout and failed to 

give a visible signal before changing lanes and pulling directly 

into the path of an oncoming vehicle." Focusing solely on 

defendant's alleged involvement with Branstetter, the plaintiff 

contends the evidence establishes that Branstetter was driving 

her Honda in the left lane when Washington suddenly turned into 

her lane to pass a tractor-trailer, and forced her vehicle off 

the highway. Continuing, plaintiff says that either Branstetter 

was in plain view and Washington failed to see her, or it was so 

foggy that Washington could not see if the left lane was clear to 
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make a lane change. Under either set of circumstances, the 

plaintiff argues, Washington breached his duty to maintain a 

reasonable lookout when he changed lanes. 

 Furthermore, the plaintiff argues, Washington violated Code 

§ 46.2-848, which requires every driver who intends to turn from 

a direct line to give a plainly visible signal of such intention 

whenever the operation of any other vehicle may be affected by 

such movement. Recalling the testimony to the effect "that 

flashing hazard lights cancel any attempted turn signal," the 

plaintiff says it is "uncontradicted that no such signal was 

given by Washington." Plaintiff contends the fact that 

"Washington may have pressed down on his turn signal lever is no 

defense to his failure to give a plainly visible signal." 

 We do not agree with plaintiff's argument. We are of 

opinion that the question whether Washington's negligence, if 

any, was a proximate cause of the collision resulting in 

decedent's death was, at the very least, a question for the jury. 

 We say, "at the very least," because we do not have the question 

whether, as a matter of law, Washington's negligence, if any, in 

changing lanes was not a proximate cause of decedent's death. 

Thus, given the issues on appeal, we shall go no further than to 

rule on the question presented by the plaintiff relating to 

Washington's duties owed to the decedent vis-a-vis the 

Branstetter incident. 

 The evidence establishes that Washington initially stopped, 
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not because of any interaction with Branstetter, but due to the 

crash truck's position ahead. It was for the jury to determine 

whether Washington reasonably believed the truck was blocking his 

passage through the left lane. 

 Other testimony confirmed Washington's belief that the crash 

truck blocked his way. For example, the investigating state 

trooper testified "three to four feet" of the truck was "in the 

travel portion of the left-hand lane of 64." Another witness 

testified he recalled "a substantial portion of the crash truck 

being in the left-hand lane." Yet another witness testified the 

crash truck "was predominantly in the left-hand lane of travel." 

 Likewise, it was for the jury to say whether Washington 

reasonably believed that "bumper-to-bumper traffic" proceeding in 

the right lane prevented him from moving into that lane and 

around the truck. 

 Therefore, the trial court did not err in submitting to the 

jury questions relating to Washington's conduct as it affected 

Branstetter and the ultimate role that conduct played in the 

decedent's death. 

 Second, the plaintiff argues the trial court erred by giving 

an unavoidable accident instruction. We agree. 

 In a mere abstract statement of law, the trial court charged 

the jury: "An unavoidable accident or incident is one which 

ordinary care and diligence could not have prevented or one which 

occurred in the absence of negligence by any party to this 
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action." 

 The defendants seek to justify the granting of the 

instruction by arguing, in part, that inclusion of the phrase "by 

any party to this action" has significance here. They say that 

despite all the vehicles involved, "the extreme weather 

conditions and the crash truck blocking the left travel lane, 

plaintiff chose only to sue Mr. Washington and his employer in 

this action, and to file a separate action against the rescue 

squad which is currently pending in Augusta County." The 

defendants contend that "Washington was entitled to defend on the 

basis that this accident was unavoidable from his standpoint." 

 As we understand the defendants' argument, they contend that 

if there are nonparties who are negligent in connection with a 

motor vehicle accident, then a party defendant may invoke the 

unavoidable accident doctrine to establish such defendant's 

freedom from fault. We disagree. The fact that all potentially 

liable parties are not joined in this action does not remove the 

case from the application of our decisions disapproving use of an 

unavoidable accident instruction. 

 Few motor vehicle collisions occur without fault. For this 

reason, we have emphasized that an unavoidable accident 

instruction is rarely appropriate in motor vehicle accident 

cases, although we have not abolished the doctrine or limited it 

to cases involving accidents resulting from unknown causes. 

Chodorov v. Eley, 239 Va. 528, 531, 391 S.E.2d 68, 70 (1990). 
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Such an instruction has the tendency to afford a jury "an easy 

way of avoiding instead of deciding the issue made by the 

evidence in the case." Mawyer v. Thomas, 199 Va. 897, 901, 103 

S.E.2d 217, 220 (1958). Accord Gardner v. Phipps, 250 Va. 256, 

261, 462 S.E.2d 91, 94 (1995). 

 In the present case, the decedent's death resulted from the 

negligence of one or more of the several vehicle operators who 

were involved in this bizarre series of events. Thus, the trial 

court committed reversible error by instructing on unavoidable 

accident. 

 Because the case must be remanded, we shall discuss the 

other issues raised by the plaintiff, for they may arise upon a 

retrial. 

 Third, the plaintiff contends the trial court erred by 

giving an instruction on the sudden emergency doctrine. We 

agree. 

 The trial court charged the jurors that if they believed 

from the evidence that Washington, "without negligence on his 

part, was confronted with a sudden emergency and acted as a 

reasonable person would have acted under the circumstances of 

this case, he was not negligent." Further, the instruction 

provided: "A sudden emergency is an event or a combination of 

circumstances that calls for immediate action without giving time 

for the deliberate exercise of judgment." Although the 

instruction correctly sets forth the sudden emergency doctrine, 
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see Carolina Coach Company v. Starchia, 219 Va. 135, 141, 244 

S.E.2d 788, 792 (1978), Washington is not entitled to its benefit 

under the facts of this case. 

 For the doctrine to apply, the condition confronting the 

operator must be an "unexpected happening." Gardner, 250 Va. at 

260, 462 S.E.2d at 94. In other words, where a set of 

circumstances has existed and the party has been exposed to them 

before, the situation is not "unexpected." Id. 

 In the present case, Washington was thoroughly familiar with 

the weather conditions on the mountain at the time, based on both 

his experience earlier in the morning and his observations as he 

ascended the mountain just before he stopped his vehicle. Given 

those conditions, Washington knew, or should have known, that a 

vehicle might be stopped ahead in his lane of travel. Such an 

occurrence was foreseeable and not unexpected. See Chodorov, 239 

Va. at 531, 391 S.E.2d at 70. 

 Moreover, Washington was not confronted with a sudden 

emergency after he reentered his truck and moved it forward a few 

feet. Then, he had time for the deliberate exercise of judgment. 

 Finally, the plaintiff contends the trial court's 

instruction relating to the duties of an operator who stops his 

vehicle on a highway was incomplete and thus erroneous. We 

agree. 

 Code § 46.2-888 prohibits a person from stopping a vehicle 

in such a manner as to impede or render dangerous the use of a 
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highway, "except in the case of an emergency, an accident, or a 

mechanical breakdown." The statute further provides that in the 

event of such emergency, accident, or breakdown, the stopped 

vehicle "shall be moved from the roadway to the shoulder as soon 

as possible and removed from the shoulder without unnecessary 

delay." 

 The trial court charged the jury: "The driver of a vehicle 

has a duty not to stop his vehicle so as to interfere with 

traffic on the highway or so as to make the highway dangerous to 

others who are using it, unless there was an emergency or an 

accident." 

 Arguing the instruction was incomplete, the plaintiff 

correctly says the trial court should have instructed the jury on 

"Washington's additional duty to move his vehicle off the roadway 

as soon as possible, even though it was properly stopped for an 

emergency." The instruction was misleading because it ignored 

Washington's statutory duty to take further action after he 

stopped. See Armstrong v. Rose, 170 Va. 190, 202, 196 S.E. 613, 

617 (1938). Parenthetically, we observe that our ruling applying 

the "emergency" provision of this statute, is not inconsistent 

with our previously expressed view that the sudden emergency 

doctrine does not apply to Washington. 

 Consequently, although the trial court correctly decided the 

first issue, the judgment below will be reversed and vacated 

because of the court's misdirection of the jury, and the case 
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will be remanded for a new trial on all issues. 

Reversed and remanded.