UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHNNY EARL ANDERSON,
Plaintiff-Appellant,

v.                                                                   No. 95-1341

RECO TRANSPORTATION, INC.,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-94-472-R)

Argued: March 6, 1996

Decided: May 30, 1996

Before HALL, HAMILTON, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: James Watson Morris, III, MORRIS & MORRIS, P.C.,
Richmond, Virginia, for Appellant. Julia Bougie Judkins, TRICHILO,
BANCROFT, MCGAVIN, HORVATH & JUDKINS, P.C., Fairfax,
Virginia, for Appellee. ON BRIEF: James W. Walker, MORRIS &
MORRIS, P.C., Richmond, Virginia, for Appellant.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Johnny Earl Anderson brought this diversity tort action
against Reco Transportation, Inc., the employer of a fellow truck-
driver with whom Anderson was involved in a traffic accident. The
jury returned a verdict for the defendant, and this appeal followed.
We affirm.

I.

On February 1, 1990, at 5:45 a.m., several vehicles were traveling
south on Interstate 85 in Virginia. The night was clear. Trucker Billie
Hendrix was having a conversation with trucker Bruce Guffey on CB
Channel 19. She told him of serious fog at mile marker 43. Trucker
Anderson also had his CB tuned to Channel 19, but it was turned low
because a friend was sleeping in the truck; he did not hear anything
about the fog. At mile marker 46, Guffey encountered an incredibly
dense fog bank. Witnesses (including one state trooper) testified that
it was unlike anything they had ever seen before, that visibility was
reduced to only 5-6 feet.

Guffey testified he could not see the fog bank until he was amidst
it. He immediately slowed down, and then suddenly came upon the
stopped or nearly stopped car of Kevin Richardson. Guffey stopped
in time to avoid hitting Richardson, grabbed his CB, and yelled for
other people to stop because of the dense fog and the stopped car in
the road. Behind Guffey, Norman Hilliard, driving a small pick-up
truck, passed Anderson at 65-67 mph. Then he hit the fog. Hilliard hit
Guffey, and Anderson hit Hilliard. Anderson suffered severe injuries,
and sued Reco Transportation, Inc., Guffey's employer. After trial,
the jury returned a verdict for the defendant, and Anderson herein
appeals.

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II.

Appellant Anderson challenges several of the district court's jury
instructions.* First, the district court allowed the defendant to argue
to the jury that Anderson violated his duty of ordinary care by not lis-
tening to his CB. Anderson claims, that, because no statute or regula-
tion required truckers to have a CB or to listen to one, it was
reversible error to allow this to go to the jury (and possibly form a
basis for contributory negligence). This argument is meritless. Vir-
ginia law, which governs in this diversity action, provides that ordi-
nary care is that care a reasonable person would exercise under the
circumstances. See Moore v. Virginia Transit Co., 50 S.E.2d 268, 271
(Va. 1948). Defendant argued that plaintiff's conduct fell below this
standard, and this is properly an issue for the jury.

Anderson next argues that the district court erred in instructing the
jury on sudden emergency. See J.A. at 239-40. Under Virginia
caselaw, sudden emergency requires (1) in fact a"sudden emer-
gency," (2) that requires "immediate action, without giving time for
the deliberate exercise of judgment," (3) without negligence on the
part of the party claiming benefit of the doctrine, and (4) that such
party acted with reasonable care in the emergency. Anderson's chal-
lenge to the trial court's sudden emergency instruction is more than
a little ironic, considering that he himself asked for the same instruc-
tion on sudden emergency insofar as it related to his potential contrib-
utory negligence. J.A. at 222-23. In making his challenge to the
instruction for the defendant, Anderson principally relies on three Vir-
ginia cases that, we believe, on closer examination actually support
giving the instruction in this case.

The first, Garnot v. Johnson, 387 S.E.2d 473, 476 (Va. 1990),
reversed a jury verdict for the defendant where the plaintiff was
struck in the rear by defendant, after she stopped in traffic while
going though a traffic light. The trial judge had there instructed on
_________________________________________________________________
*Reco responds, inter alia, that Anderson did not properly object or
submit alternative instructions as required by Fed. R. Civ. P. 51.
Because, however, Rule 46 relaxes the requirements of Rule 51 signifi-
cantly, and because the jury instructions were not erroneous in any event,
we do not address this alleged waiver.

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sudden emergency, but, because stopping was not unforeseeable,
given that "a driver knows, or should know, that a car immediately
in front of him may stop suddenly." The next sentence, however, con-
tinues "[t]herefore, such a stopping, absent evidence of an unforeseen
happening, does not constitute an emergency that would invoke the
sudden emergency doctrine." Id. (emphasis added). Here, however,
there was other evidence -- testimony of an unusually dense fog
(unlike one anyone had seen before) that the drivers entered suddenly
(even though Guffey knew that there was supposed to be fog, it was
not where he was told -- mile marker 46 rather than 43 -- and he
arguably was not reasonably able to foresee how serious it was). The
other two cases upon which Anderson relies are similarly limited in
scope. See Bentley v. Felts, 445 S.E.2d 131, 134 (Va. 1994) (revers-
ing because trial court gave sudden emergency instruction when driv-
er's power brakes failed and he struck plaintiff from behind; because
he was "faced only with a loss of power assistance," he should have
been able to anticipate such failure, and he "could have stopped the
car . . . had he ["simply"] used sufficient force"); Chodorov v. Eley,
391 S.E.2d 68, 69 (Va. 1990) (relying heavily on Garnot and revers-
ing because trial court gave sudden emergency instruction where
defendant was "following too closely" and struck the car in front of
him when he was "blinded momentarily" by the sun).

Central to this and most of the other issues in this case is foreseea-
bility, and, presumably, the jury determined that the stopped car in the
sudden blinding fog was not reasonably foreseeable. Compare
Hammett v. Seastrunk, 365 F.2d 232 (4th Cir. 1966), where the court,
applying North Carolina law, upheld the trial judge's dismissal of a
very similar case, without even allowing the case to be submitted to
the jury. There, a number of drivers suddenly encountered an "unusu-
ally dense bank of fog," limiting visibility to 10 feet. A multiple-car
accident ensued. The trial judge concluded, and the Fourth Circuit
affirmed, that

          the collisions were unavoidably accidental and that there
          was no liability on the defendants or the plaintiff. The judge
          [found the parties] all equally negligent in failing to see the
          fog until they were virtually upon it or in it since, in the
          exercise of due care, the fog could have been seen from
          some distance away; however, he held that this negligence

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          was not the proximate cause of the collisions since, even if
          the parties had observed the fog before encountering, they
          could not reasonably have been expected to foresee or
          anticipate the danger which it presented.

Id. at 234 (emphasis added). We therefore conclude that the district
court did not abuse its discretion in giving the instruction that it did.

In a related argument, Anderson challenges the following jury
instruction:

          The driver of a vehicle ordinarily has a duty not to stop his
          vehicle in such a manner as to impede or render dangerous
          the use of the highway by others who are using it. This duty
          does not apply if the driver of a vehicle stops momentarily
          on the highway in an emergency or in order to avoid a colli-
          sion.

J.A. at 238. This instruction, however, was a perfectly reasonable
paraphrase of the following statute:

          No person shall stop a vehicle in such manner as to impede
          or render dangerous the use of the highway by others, except
          in the case of an emergency, an accident, or a mechanical
          breakdown.

Va. Code. § 46.2-888 (emphasis added).

Finally, Anderson challenges the court's instructions on supersed-
ing cause:

          What is a proximate cause? A proximate cause of an acci-
          dent, injury or damage is a cause which in a natural and con-
          tinuous sequence produces the accident, injury or damage.
          It is a cause without which the accident, injury or damage
          would not have occurred.

          A superseding cause is an independent event not reasonably
          foreseeable that completely breaks the connection between

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          the defendant's negligent act and the plaintiff's injury. A
          superseding cause breaks the chain of events so that the
          defendant's original negligent act is not a proximate cause
          of the plaintiff's injury in the slightest degree.

J.A. at 236-37 (emphasis added).

This instruction tracks the Virginia caselaw essentially verbatim.
See, e.g., Panousos v. Allen , 425 S.E.2d 496, 499 (Va. 1993);
Coleman v. Blankenship Oil Corp., 267 S.E.2d 143, 147 (Va. 1980).
Anderson argues that the fog and Richardson's stopped car could not
have been superseding causes (as Reco argued) because they pre-
ceded Reco's alleged negligence and because they were reasonably
foreseeable. Although his argument has some plausibility, we con-
clude that the jury instructions, when taken as a whole, were not an
abuse of discretion.

CONCLUSION

For the reasons stated herein, we affirm the judgment of the district
court.

AFFIRMED

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