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JACK L. WACTOR v. JOHN H. MOON & SONS

DECEMBER 16, 1987

JACK L. WACTOR
v.
JOHN H. MOON & SONS, INC., COOK CONSTRUCTION, INC. AND THE E. RANDLE COMPANY



BEFORE ROY NOBLE LEE, ANDERSON and ZUCCARO

ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:

Jack Wactor filed suit in the Circuit Court of Madison County against John H. Moon & Sons, Inc., [Moon] Cook Construction, Inc. [Cook], and the E. Randle Company [Randle] seeking damages for personal injuries sustained in an automobile wreck. The lower court entered summary judgment in favor of Randle against Wactor, and the case proceeded to trial on the merits against Moon and Cook. The jury returned a verdict in favor of those defendants and Wactor has appealed to this Court.

About 12:30 a.m., January 31, 1985, Tracy Taylor was driving a 1979 two-door Toyota in a northerly direction on Interstate 55 in Jackson, Mississippi. Appellant Jack Wactor and Larry Slaughter were riding in the vehicle with Taylor. In the vicinity of Briarwood Drive, extensive construction was underway on the interstate. A short distance north of the Briarwood Drive exit, traffic was diverted to the east of the highway onto a temporary detour road.

 Taylor turned upon the detour road, hit a pool of standing water, which covered it, and lost control of the vehicle. The automobile spun off to the right shoulder of the detour road and to the adjacent frontage road, which was under construction and closed to traffic, continued across the frontage road, hit an open storm sewer, and finally collided with a wooden light pole. The automobile was totally

 destroyed. Taylor sustained moderate injuries, Slaughter eventually died as a result of his injuries, and appellant suffered a broken neck and was rendered a quadriplegic.

 Appellees Moon and Cook were engaged as joint venturers in the construction on Interstate 55. Cook constructed the temporary detour road on which the accident started. Randle constructed the adjacent frontage road. Appellant alleged that appellees negligently failed to provide for adequate drainage and to warn of the dangers on the detour road.

 The evidence indicated that two or three inches of water was running across the depression on the night of the accident; that water had collected at the place on other occasions; and that other drivers of vehicles previously had encountered the same condition with water in the depression.

 According to Taylor, the driver, he was driving at a speed of 40 mph at the time of the accident. The accident reconstruction expert for appellant testified that the car was going 45 mph at the time it struck the water-filled depression. An accident reconstruction expert for appellees testified that the speed of the car was 80 mph.

 I

 THE LOWER COURT ERRED IN DISMISSING THE E. RANDLE COMPANY BY WAY OF SUMMARY JUDGMENT.

 The evidence is undisputed that Randle constructed the adjacent frontage road; that Cook constructed the temporary detour road on which the accident occurred (started); that Randle had no part or connection with the construction and maintenance of that detour road; and there was no genuine issue of material fact for submission to a jury. Instruction P-4, which was submitted by appellant and given by the court, follows:

 The Court instructs the jury that E. Randel [sic] Company is not in any way responsible for the accident that occurred on January 31, 1985, and the jury is further instructed that in rendering its verdict, it may not in any way consider, as a proximate contributing cause of the accident, the fact that there was an open drain hole near the curb struck by the vehicle of Tracey [sic] Taylor.

 Obviously, appellant's purpose in submitting Instruction P-4 was to place all blame for the wreck upon the

 negligence of Moon and Cook and to discount any possible negligence on the part of Randle. Appellant received the benefit of Instruction P-4 at trial and cannot take an inconsistent approach to the law of the case which he established at trial. Scafidel v. Crawford, 486 So. 2d 370 (Miss. 1986); Miss. State Bldg. Comm'n v. S & S Moving, Inc., 475 So. 2d 159 (Miss. 1985); Clayton v. Thompson, 475 So. 2d 439, 445 (Miss. 1985); Friendly Finance Co. of Biloxi, Inc. v. Mallett, 243 So. 2d 403 (Miss. 1971); Miss. State Highway Commissioner v. Spencer, 209 So. 2d 821 ...


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