Present: Carrico, C.J., Compton, Stephenson, Whiting, 1 Lacy,
Hassell, and Keenan, JJ.
EMORY STEVE GARDNER
v. Record No. 942047 OPINION BY JUSTICE HENRY H. WHITING
September 15, 1995
KEVIN MICHAEL PHIPPS, et al.
FROM THE CIRCUIT COURT OF WISE COUNTY
J. Robert Stump, Judge
In this appeal, we deal with issues of contributory
negligence, sudden emergency, and unavoidable accident arising
from a vehicular collision. Conforming to established appellate
principles, we state the facts in the light most favorable to the
defendant, the prevailing party in the trial court.
On the night of February 15, 1991, Emory Steve Gardner and
his friend Tim Crawford were unable to drive to their own homes
because of snowy weather. Hence, they spent the night at the
home of another friend, Mitchell Chester. The next morning, the
snow stopped around 9:00 a.m. and Gardner and Crawford travelled
2
on the "main road" to Pound to buy food for breakfast. Although
the road was "slippery and wet" from the snow, Gardner had no
accident on the way to Pound.
Crawford suggested that they return to Chester's house by
State Route 632, a shorter, but less travelled route than the
main road. The temperature was "about twenty degrees" and Route
1
Justice Whiting prepared the opinion in this case prior to the
effective date of his retirement on August 12, 1995, and the Court
subsequently adopted the opinion.
2
The record fails to disclose any other designation or
description of the "main road."
632 was still "[s]now covered and icy." Around 12:00 noon,
Gardner was approaching a sharp curve on Route 632 in Wise
County, driving his pickup truck between five and ten miles an
hour on his side of the two-lane secondary road.
At the same time, Kevin Michael Phipps was approaching the
curve in the opposite direction, driving a pickup truck. For the
preceding three to four hours, Phipps had been delivering
newspapers published by Bristol Newspapers, Inc. over what Phipps
described as roads "completely covered" with snow. Although the
Phipps truck was equipped with new snow tires and was loaded with
bags of salt in the rear for traction, "plus some other
newspapers," it had "skidded other times that morning."
As Phipps drove down what he described as "a medium grade,"
at a speed of "between five and ten miles an hour," he "lost
control of [the truck]" before entering the curve when the truck
"started . . . fishtailing or whatever." Phipps tried to regain
control by steering the truck, but was unsuccessful.
However, Phipps's truck remained on its right side of the
road until it reached the curve, where it entered Gardner's
traffic lane. The left front of Phipps's truck struck the left
front side of Gardner's truck in Gardner's traffic lane, pushing
Gardner's truck off the road, over an embankment into a creek,
injuring Gardner.
Gardner sued Phipps and Bristol Newspapers. Without
objection, the court instructed the jury that Phipps and Gardner
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had the duty to use
that degree of care which an ordinarily prudent person
would have exercised having regard to the duty of a
driver to exercise increased caution in the face of
known and obvious dangerous condition[s] of the
roadway.
Over Gardner's objection, the trial court also instructed the
jury on issues of contributory negligence, sudden emergency, and
unavoidable accident. After the jury returned a verdict in favor
of the defendants, the court entered judgment upon that verdict.
Gardner appeals.
Noting that the evidence fails to show that he lost control
of his vehicle or did anything to contribute to the accident,
Gardner contends that the court erred in submitting the issue of
contributory negligence to the jury. The defendants respond that
Gardner's choice of Route 632, which was covered with snow and
ice, rather than the "main road," which "was perfectly clear,"
was a "particular type of contributory negligence . . . known as
the 'choice of paths' rule." The defendants argue that this
issue was properly submitted to the jury on that theory.
According to the defendants, Virginia adopted the choice of
paths doctrine in Ward v. Clark, 163 Va. 770, 776, 177 S.E. 212,
214 (1934). However, since the evidence in this case fails to
show a choice between an obviously safe road and an obviously
dangerous one, we need not decide whether and under what
circumstances the so-called "choice of paths doctrine" will be
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applied to the choice of roads open for travel to the public, as
they were in this case.
Ward and the two cases that preceded Ward involved choices
between obviously safe and obviously dangerous ways for a
plaintiff to perform an act. Id. (choice between descending icy
steps in front of apartment or covered steps at rear); Riverside
& Dan River Cotton Mills, Inc. v. Carter, 113 Va. 346, 351, 74
S.E. 183, 185 (1912) (choice between servicing dangerous machine
in inadequately lighted room at night or adequately lighted room
in daylight); Street v. Norfolk & W. Ry., 101 Va. 746, 750, 45
S.E. 284, 285 (1903) (choice between working on railroad car from
position on railroad tracks with other cars in vicinity and from
position off tracks where no danger of being struck by other
rolling cars).
In contrast, Gardner's actual or constructive knowledge that
Route 632, a "curvy, narrow mountain" road, was not as well
travelled as the main road and might be covered with snow and
patches of ice did not present him with a choice between an
obviously safe route and an obviously dangerous one to return to
Chester's house. The main road itself was "slippery and wet"
from the snow. And Gardner had negotiated both roads without
incident until Phipps lost control of his truck and struck
Gardner. Accordingly, the court erred in instructing the jury on
the issue of contributory negligence based on the choice of paths
doctrine.
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Since we cannot determine upon what basis the jury returned
its verdict for the defendants, and it may have been upon that of
contributory negligence, we conclude that Gardner was prejudiced
by this instruction. Ring v. Poelman, 240 Va. 323, 328, 397
S.E.2d 824, 827 (1990). If the evidence is substantially the
same as that in the first trial, the trial court should not grant
contributory negligence instructions.
Next, we consider whether the court erred in granting a
sudden emergency instruction at Phipps's request. Gardner
asserts that since Phipps's truck had skidded on the snowy road
several times earlier that morning, he should have anticipated
that his vehicle might skid or "fishtail" again; hence, he was
not faced with a sudden emergency. Ordinarily, we would not
consider this contention since it is asserted for the first time
on this appeal. Rule 5:25. However, because the case will be
remanded for a new trial and the same issue may arise on retrial,
we will consider the contention.
The word "emergency" is defined as "[a] sudden
unexpected happening; an unforeseen occurrence or
condition; . . . an unforeseen combination of
circumstances that calls for immediate action."
Black's Law Dictionary 469 (5th ed. 1979). See also
Webster's Third New International Dictionary 741
(1981); Portsmouth v. Chesapeake, 205 Va. 259, 266, 136
S.E.2d 817, 823 (1964).
Garnot v. Johnson, 239 Va. 81, 86, 387 S.E.2d 473, 476 (1990).
Here, the fact that Phipps's truck "fishtailed" or skidded was
not an unexpected happening as claimed; the truck skidded several
times earlier that morning as Phipps drove over the snowy roads
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delivering newspapers. Thus, no reasonable inferences could be
drawn that Phipps was faced with an "emergency" as that term is
defined and applied in the sudden emergency doctrine. Id.
Accordingly, this instruction should not be granted on retrial if
the evidence is substantially the same.
Next, we decide whether the court erred in instructing the
jury that "an unavoidable accident is one which ordinary care and
diligence could not have prevented or one which occurred in the
absence of negligence by any party to this action." We have
stated the controlling rule as follows:
[I]t is rarely permissible to give an unavoidable
accident instruction in automobile accident cases
. . . . This follows because we have recognized that
few automobile accidents occur without fault [and] we
have recognized that such an instruction is apt to give
a jury "an easy way of avoiding instead of deciding the
issue made by the evidence."
Chodorov v. Eley, 239 Va. 528, 531, 391 S.E.2d 68, 70 (1990)
(citations omitted).
In our opinion, this is not one of those rare cases in which
"there is a reasonable theory of the evidence under which the
parties involved may be held to have exercised due care,
notwithstanding that the accident occurred." Id. at 531-32, 391
S.E.2d at 70 (quoting Bickley v. Farmer, 215 Va. 484, 488, 211
S.E.2d 66, 69-70 (1975) and Batts v. Capps, 213 Va. 174, 175-76,
191 S.E.2d 227, 228 (1972)). Although Phipps saw no other
vehicles on Route 632, he noticed the tracks of other vehicles
that had preceded him and had apparently negotiated the curve
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without incident. This indicates that Phipps also could have
descended the hill without losing control of his vehicle.
Accordingly, it was error to grant the instruction.
Finally, we reject the defendants' argument that even if the
instructions were erroneously granted, "such errors were harmless
because it plainly appears from the record that they could not
have affected the verdict." This argument is based on the
premise that "the evidence failed to establish negligence on the
part of Phipps." In our opinion, there was sufficient evidence
to submit the issue of Phipps's negligence to the jury and we
also note that the defendants did not assign cross error to that
action of the court. Thus, we cannot say that the errors were
harmless.
Because of the trial court's error in granting the
contributory negligence and unavoidable accident instructions, we
will reverse the judgment and remand the case for a new trial.
Reversed and remanded.
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