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Amber Alert

Wednesday, January 9, 2008

Lawsuit not grief binds families mourning two killed in crash

She lost her husband. He lost his nephew.

But it was not a shared grief that bound them Tuesday. It was a lawsuit.

Kim Shelton, an Alabama woman whose husband was killed in a fiery Interstate 75 crash in Campbell County, is trying to convince a U.S. District Court jury this week that Kentucky businessman Gary Day, whose nephew died in the same explosive collision, should be held responsible for the fatal August 2005 accident.Shelton's husband, Wade J. Shelton, 38, of Albertville, Ala., died when his 2005 Freightliner tractor-trailer loaded with plastics was struck by an out-of-control 2004 International rig loaded with grain driven by Day's nephew, Edgar Holmes Jr., 52, of Columbia, Ky.

The two rigs, headed in opposite directions, collided at respective speeds of more than 50 mph. Holmes' truck, owned by Day and his trucking company, slammed into Shelton's truck just behind the cab where fuel tanks are located, causing a massive explosion. Both men died.

On those facts, there is no dispute.

Neither side in this courtroom battle presided over by U.S. District Judge Tom Varlan disagrees that it was a lathe chuck - a massive 220-plus pound machine tool - that somehow wound up in the interstate roadway that led to the fatal crash.

But what pits this pair of grieving survivors against each other is a matter of seconds and a judgment call.

"If (Holmes) had simply applied his brakes and slowed down … we wouldn't be here today," attorney Toby D. Brown told jurors Tuesday in opening statements. "If he had made a right steer, we would not be here today."

"We're here to decide what could have, what should have Mr. Holmes done in three-quarters of a second," Day's attorney, Robert R. Davies, countered. "Was the death of these two gentlemen senseless? Yes. Was it tragic? Yes. Was it Mr. Holmes' fault that lathe chuck rolled out in front of him? Absolutely not."

In this case, that lathe chuck is the star witness, although dueling engineers will try to convince jurors on whose list the machine tool should appear. To understand what it looks like, picture old-school tinker toys. The chuck is a concrete version of the round wooden tinker toy. It was connected to a concrete "spindle," much the same as a skinny wooden peg was inserted into the tinker toy. It is used in various engines.

No one knows how the lathe chuck wound up in the northbound lane of Interstate 75 near mile marker 142 in Campbell County on that August day in 2005. It likely fell from the back of a truck. How long it had been there is hotly debated.

Brown contends the massive concrete wheel and spindle had been in the roadway long enough to come to a rest. Davies insists it had just fallen onto the road and was still rolling when Holmes encountered it.

"He saw it from at least 110 yards," Brown said of Holmes.

According to Brown's expert witnesses, Holmes made a tactical decision to "straddle" the big wheel in the road rather than avoid it, moving four feet to the left to position his rig nearly dead-center over the concrete tool in hopes of driving over it.

Unfortunately, however, the tool's diameter of 15 feet was greater than the axle clearance of just over 10 feet of Holmes' vehicle.

Brown told jurors the impact between the axle and lathe crank destroyed the big rig's steering mechanism. The rig careened across a grassy median and into the northbound lanes, where Shelton desperately began braking his big rig and steering it onto the shoulder of the roadway to avoid the collision, Brown said.

"They have admitted my client was a completely innocent victim," Brown told jurors of Shelton. "He did everything right in braking and moving to the right."

Davies countered that Holmes was just as innocent, responding in a split second to a "sudden emergency."

"After Mr. Holmes struck this item, he lost all control of his vehicle," Brown said. "There was nothing that could be done."

Day is being sued as Holmes' employer, not because he also happened to be the slain trucker's uncle. Shelton's widow is seeking more than $1 million in compensatory damages.

The civil case in U.S. District Court because the accident occurred in Tennessee but those involved were from out of state.

The trial continues today with expert testimony from engineers expected.Source