Bardwell v. McLaughlin

Frank Holt, Justice. Appellant, administratrix of the estate of Emmett Bardwell, brought this action against appellee alleging that appellee negligently drove a pickup truck which struck and killed appellant’s decedent. A jury denied recovery by finding the comparative negligence of appellee was 10% and appellant’s decedent 90%. The sole issue on appeal is the propriety of the trial court instructing the jury as to “sudden emergency” (AMI [Civil] 614). It is argued that under the facts and circumstances it was prejudicial to give the instruction and we agree. At approximately 3:50 a.m., the appellee, who was an off-duty state policeman, found the decedent’s truck wrecked on an interstate highway. Appellee could not locate a telephone in the vicinity. He drove back to the scene of the accident and, because of insufficient light, was unable to determine if the driver of the wrecked vehicle was in the vicinity. Appellee returned to his truck, left the interstate and drove down the lateral service road to find assistance. Cars driving in the opposite direction on the interstate caused appellee to drive with his headlights on lowbeam. He was in his proper lane of traffic driving 70 miles per hour, the speed limit being 60, when he suddenly saw the decedent 50 feet ahead in appellee’s lane. This was approximately one mile from the scene of the decedent’s wrecked vehicle. The decedent was walking two feet from the center line in the same direction as appellee was traveling. Appellee testified that the combination of lights from the approaching vehicles on the interstate and the clothing the decedent was wearing prevented him from seeing decedent until he was 50 feet from him. Appellee didn’t think anyone would be walking on the access road. Appellee testified that he did not have sufficient time to take evasive action or apply his brakes before he struck the decedent. Thereafter, the truck skidded several hundred feet, stopping in a field. There is substantial evidence that the decedent was intoxicated at the time of the fatal accident. The instruction given to the jury is AMI (Civil) 614 (Sudden Emergency) which reads: A person who is suddenly and unexpectedly confronted with danger to himself or others not caused by his own negligence is not required to use the same judgment that is required of him in calmer and more deliberate moments. He is required to use only the care that a reasonably careful person would use in the same situation. (Emphasis added.) The appellee contends that this instruction was proper in the circumstances. Appellee’s argument is that appellant’s decedent created an emergency situation which originated and continued from the time he left his wrecked automobile one mile distant from the fatal accident and that appellee was reacting to this emergency situation created by the decedent. Therefore, the appellee was not guilty of any negligence which created the emergency situation. As previously indicated, we cannot agree that the emergency instruction is applicable in the factual situation here. The appellee’s reactions to his discovery of the decedent’s wrecked vehicle certainly did not create a continuing sudden emergency. The appellee had time to seek a telephone in the vicinity, to return to the scene of the wrecked vehicle, and to decide to seek assistance elsewhere. Thus there was no sudden emergency that caused the appellee, in the stress of the situation, to drive at a speed of 70 miles an hour with his lights dimmed. Nor was a sudden emergency, within the meaning of the AMI instruction, involved when the appellee saw the decedent walking down the highway. Appellee was admittedly driving 70 miles per hour and first saw the decedent 50 feet from the impact point. Appellee was traveling at a rate of approximately 102.6 feet per second and had less than xh a second to react. The perception/reaction distance of a driver of a car traveling 70 miles per hour is 77 feet.1 Therefore, as appellee testified, he had no chance to swerve or brake his vehicle. The basis of the sudden emergency doctrine is that the driver be in a stressful situation which dictates a quick decision as to possible courses of conduct. The law does not require of the actor more than it is reasonable to expect of him under the circumstances which surround him. Therefore, the court and jury in determining the propriety of the actor’s conduct must take into account the fact that he is in a position where he must make a speedy decision between alternative courses of action and that, therefore, he has no time to make an accurate forecast as to the effect of his choice. (Emphasis added.) Restatement, Second, Torts § 296 Comment (b). The sudden emergency instruction given to the jury in the case at bar is cast in terms of “judgment. ” The driver must be aware of the danger in a situation where he has a choice of action. In Howard v. Tri-State Ins. Co., 253 Ark. 405, 486 S.W. 2d 77 (1972), we held it error for the trial court to give a sudden emergency instruction where there was “not one iota of testimony of either driver finding himself in an emergency situation and taking action accordingly.” There, neither driver perceived a situation in sufficient time to indicate an emergency and make a decision between alternative courses of action. Likewise, in the case at bar, it was physically impossible for appellee to make a decisional act after seeing the decedent. Only the instructions on comparative negligence are applicable in this factual situation. Reversed and remanded. Fogleman and Jones, JJ., dissent. Footnotes [1] Uniform Table of Driver Stopping Distances, Including Perception-Reaction Distance, Am. Jur. 2d, Desk Book at 456.