Car & General Ins. v. Keal Driveway Co.

McCORD, Circuit Judge. Ralph Campbell was injured when his automobile collided, with another automobile owned by Keal Driveway Company, and which was being operated at the time by its employee, R. S. Bunnell. Campbell, who was working in the course of his employment with Franklin Products Corporation, elected to accept compensation benefits under the provisions of the Florida Workmen’s Compensation Act. As subrogee, Car & General Insurance Corporation, the employer’s insurance carrier, brought this action on behalf of itself and Campbell, to recover damages against Keal Driveway Company and R. S. Bunnell for the injuries sustained by Campbell. Sec. 39, Florida Workmen’s Compensation Act, Acts 1935, c. 17481. The plaintiff alleged that the accident was the result of Bunnell’s negligence; and the defendants answered denying that they were guilty of negligence, and alleging that in any event [835] Campbell was guilty of contributory negligence which, barred recovery. The case was tried to a jury which found the defendants guilty of negligence, and Campbell guilty of contributory negligence. Judgment was thereupon entered for the defendants and the plaintiff appealed. The appellant contends that the trial court erred (1) in submitting the question of contributory negligence to the jury, and (2) in failing, after being requested to do so, to charge the jury on the law of sudden emergency. About ten o’clock in the morning on May 14, 1941, Campbell was driving his Ford automobile in a northerly direction along a paved highway in Hillsborough County, Florida. At that time and place Bunnell, in the course of his employment with Keal Driveway Company, was operating a Nash automobile and by tandem arrangement was towing another Nash automobile along the highway in a southerly direction. The road was straight and twenty feet wide. The day was clear. Campbell and Bunnell were driving their cars at speeds from forty-five to fifty miles per hour, and they approached and collided head-on, and both drivers were rendered unconscious by the impact. Campbell was seriously injured. The drivers were the only eye-witnesses to the accident, and both testified that the collision was head-on, and the photographic evidence is to the same effect. Shortly after the accident Bunnell signed a statement to the effect that the Nash automobile was. sideswiped, but his evidence on the trial was that the accident was a head-on collision, and that it was caused by Campbell driving the Ford automobile from its right-hand lane and across the road and into the path of the oncoming Nash automobiles. Campbell’s version of the accident is materially different from that given by Bunnell. He testified that as he moved along the highway he saw the Nash automobile coming toward him about one-quarter of a mile away; that it was on its left side of the road, and on his side; that for a short distance its wheels would run off the pavement and onto the shoulder of the road; that as it came nearer it gradually moved over to its proper side of the road, and he then noticed it was towing another automobile; that when the cars came within about 200 or 250 feet of his car they were on their proper side of the road; that as they came nearer and about 200 feet from him he could not see a driver at the wheel of the first car; that when the first car came within a few feet of him, between ten and twenty feet, it suddenly swerved across the center line and into the path of his automobile; and that the cars met head-on and he was rendered unconscious. The testimony was in sharp conflict, and it was for the jury to weigh the evidence and determine whether the plaintiff had established by a preponderance of the evidence that Bunnell was guilty of negligence which caused the accident, and, if so, whether the defendant had carried its burden of establishing by a preponderance of the evidence that Campbell had been guilty of contributory negligence. The issue of contributory negligence was for the jury, but we think that on the facts of this case it was prejudicial error to submit the issue without charging the jury on the rule of sudden emergency, proper request for such charge having been made, and its refusal objected to. Moreover, after the jury had retired to consider its verdict, it re-entered the court room and request was made by a juror for further instructions as to the duty of Campbell if “he was frightened by the oncoming danger and he tried to swing to the left to get out of the path of trouble.” Counsel for the plaintiff again requested the court to charge as to one’s duty when confronted by a sudden emergency, but the court refused to give such charge. When Campbell first saw the Keal cars, they were on the wrong side of the road and one-quarter of a mile away. They then moved gradually to their right side of the road and continued to approach. Campbell had the right to assume that they would, in obedience to the rules of the road, stay on that side. Until something occurred to make him think otherwise, he had every right to assume that Bunnell would move his vehicles along their proper side of the road in a careful and prudent manner. The law takes into account situations as they exist at the time of and shortly before the happening of an accident. According to Campbell’s testimony, the automobiles were about 200 feet apart when he first noticed that they appeared to be operating without a driver. This was his first notice that their driver was missing, asleep, or otherwise incapacitated. The cars were then moving at combined speeds of from ninety to one hundred miles per [836] hour — from 132 to 146 feet per second. There was then, at most, little more than one second in which Campbell could act to avoid danger. In such cases as this, it is the law that one placed in a position of sudden emergency or peril by the negligence of another, and not by his own negligence, is not held to the same degree of care and prudence as one who has time for thought and reflection. Thus, if one finds himself in a position of sudden peril and acts as a person of ordinary prudence would act under such circumstances, the jury may find him free from negligence or contributory negligence, although he might have been able to avoid the accident under less pressing circumstances. 38 Am.Jur., Negligence, § 41; 5 Am.Jur., Automobiles, § 171; White v. Hughes, 139 Fla. 54, 190 So. 446, 452; Hainlin v. Budge, 56 Fla. 342, 47 So. 825, 830; Lehigh Valley R. Co. v. Kilmer, 2 Cir., 231 F. 628, 632; Payne v. Shotwell, 3 Cir., 273 F. 806, 811. Cf. Feck’s Adm’r v. Bell Line, 284 Ky. 288, 144 S.W.2d 483; Bloxom v. McCoy, 178 Va. 343, 17 S.E.2d 401. If the jury believed that Bunnell was not at the wheel and that the Keal cars suddenly swerved into the path of Campbell’s automobile, it could have found that a real emergency existed. If the jury found that under such circumstances of sudden peril Campbell did turn left, or did nothing but keep to his proper side of the road, it might have, under proper instructions, excused him for not thinking and acting otherwise in the second or fraction of a second intervening. Failure to charge the jury as to the law of sudden emergency was error. The judgment is reversed and cause is remanded for a new trial. Reversed and remanded.