Mack v. Wilkerson

Jack Holt, Jr., Chief Justice. This case involves a suit for personal injuries and wrongful death. On the morning of December 2, 1987, the appellee, Billy Wilkerson, was driving a tractor/trailer rig loaded with sawdust. Wilkerson was employed by the appellee, T & S Sawmill, Inc. (Sawmill), which also owned the rig that Wilkerson was driving. North of Pine Bluff, Wilkerson approached the Highway 79 bridge over the Arkansas River; the highway at that point had four lanes — two lanes each going north and south. An accident on the bridge had blocked both south-bound lanes; as a result, Wilkerson stopped his truck in the outside lane behind a line of stopped vehicles. Wilkerson turned on his flashing lights, locked his trailer brakes, and waited in his truck for the accident to be cleared. A Chevrolet Blazer was parked behind other stopped vehicles on the inside lane next to Wilkerson. Approximately ten minutes later, the appellant, Joseph Mack, approach the bridge from behind Wilkerson. Mack was also driving a tractor/trailer rig and his son, David Mack, was a passenger. Traveling at an estimated speed of 35 miles per hour, Mack was unable to prevent his rig from colliding into both Wilkerson’s rig and the Blazer. As a result, Mack was injured, and his son was killed. Mack brought suit against Wilkerson and Sawmill and claimed that his accident was a result of Wilkerson’s negligence; the Estate of David Mack also filed suit against the appellees for wrongful death. The cases were consolidated for trial, and the jury found in favor of Wilkerson and Sawmill. The appellants assert two points of error on appeal: 1) that the trial court erred in refusing to give their requested jury instruction AMI 601 containing Ark. Code Ann. § 27-51-1303 (1987) and Arkansas Motor Carrier Act, 1955,49 C.F.R. Ch. Ill § 392.22 (10-1-89 ed.), and 2) alternatively, that the trial court erred in refusing to give their requested jury instruction AMI 601 containing only section 27-51-1303. Both arguments are without merit, and we affirm. Section 27-51-1303 addressed the stopping, standing, or parking outside of business of residence districts and provides in pertinent part as follows: (a)(1) Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practicable to stop, park, or leave the vehicle off such part of the highway. In every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles, and a clear view of the stopped vehicles shall be available from a distance of two hundred feet (200') in each direction upon the highway. (Emphasis added.) * * * * Section 392.22 addressed emergency signals with reference to stopped vehicles and provides in pertinent part as follows: (b) Placement of warning devices — (1) General rule. Except as provided in paragraph (b)(2) of this section, whenever a vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall as soon as possible, but in any event within 10 minutes, place the warning devices with which his vehicle is equipped in conformity with the requirements of § 393.95 of this subchapter, either three emergency reflective triangles, three electric emergency lanterns, three liquid-burning emergency flares, or three red emergency reflectors in the following manner: (Emphasis added.) * * * * In Burchfield v. Carroll, 255 Ark. 245, 499 S.W.2d 620 (1973) (citing American Bus Lines, Inc. v. Merritt, 221 Ark. 596, 254 S.W.2d 963 (1953)), we noted with reference to Ark. Stat. Ann. § 75-647 (Repl. 1957) (the predecessor of section 27-51-1303) that the statute does not apply to stops arising out of the exigencies of traffic. We note as well that section 392.22, by its own phrasing, excludes vehicles stopped for necessary traffic stops. In this case, the evidence is undisputed that Wilkerson was properly stopped behind other vehicles in southbound traffic at the Highway 79 bridge because of an accident on the bridge. It is clear, then, that Wilkerson had stopped due to the exigencies of traffic and that the stop was a necessary one. Consequently, neither section 27-51-1303 nor section 392.22 applies to the circumstances of this case, and the trial court’s refusal to give an incorrect instruction is not error. See Davis v. Arkansas State Hwy. Comm’n, 290 Ark. 358, 719 S.W.2d 694 (1986) (citing Kanis v. Rogers, 119 Ark. 120, 177 S.W. 413 (1915)). Accordingly, the judgment is affirmed. Newbern and Price, JJ., dissent.