I. THE TRIAL COURT ERRED, TO THE PREJUDICE OF APPELLANT, WHEN IT INSTRUCTED THE JURY ON THE DOCTRINE OF SUDDEN EMERGENCY OVER THE OBJECTIONS OF THE APPELLANT, SINCE SAID INSTRUCTION WAS MISLEADING, CUMULATIVE, AND TAKEN AS A WHOLE, NOT A CORRECT STATEMENT OF THE LAW.
II. THE TRIAL COURT ERRED, TO THE PREJUDICE OF APPELLANT, WHEN IT INSTRUCTED THE JURY ON THE REQUIREMENTS FOR SIGNALING, TURNING, AND MOVING LEFT OR RIGHT, OVER THE OBJECTIONS OF THE APPELLANT, SINCE SAID INSTRUCTION WAS MISLEADING AND IRRELEVANT.
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The defendant claims that if he is found to have failed to comply with any statutory requirements, such failure was not negligence because he was faced with a sudden emergency. An operator of a motor vehicle who was faced with a sudden emergency. An operator of a motor vehicle who fails to comply with a safety statute is excused from such failure to comply with the statute, and he avoids the legal effect of negligence arising therefrom, by establishing by the greater weight of the evidence that, without fault on his part, and because of circumstances over which he had no control, he was confronted by a sudden and unforeseeable emergency which made compliance with such statute impossible. If you find that these conditions existed, the defendant is excused from a violation of such statute.
If you find that the defendant was excused from complying with the statute because of a sudden emergency, he is still required to use ordinary care under the circumstances. Ordinary care is such care as a reasonably careful prudent reasonable careful person would use under the same or similar circumstances. You will consider the danger, confusion and excitement of the situation, and along with the other facts, you will decide whether the defendant used ordinary care. Tr. Vol. III at 444-445. We first turn to an analysis of the doctrines of sudden entrance and sudden emergency. The first doctrine is discussed in Erdman v. Mestrovich (1951),155 Ohio St. 85, as follows: Violation of the assured-clear-distance-ahead rule consists of the operation of a motor vehicle at a greater speed than will permit the operator thereof to bring it to a stop within the assured clear distance ahead, unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance within such clear distance and into his path or lane of travel of an obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith.
Id. at 85-86. Our research indicates a paucity of other reported Ohio cases utilizing the specific term "sudden entrance." See, e.g., Tenhunfeld v. Parkway Taxi Co. (1957), 105 Ohio App. 425; Scott v. Marshall (1951), 90 Ohio App. 347; Morrin v. Bond (1950),87 Ohio App. 357. However, the Supreme Court later used the Erdman sudden entrance language in reference to the sudden emergency doctrine in Shinaver v. Szymanski (1984), 14 Ohio St.3d 51: Plaintiff argues that the "sudden emergency" exception should apply here, excusing him from compliance with the assured-clear-distance-ahead requirement. *** This exception states that a driver does not violate the statute where the assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance into his path of an obstruction which renders him unable, in the exercise of reasonable care, to avoid a collision.
Id. at 54.
In Linton v. Tomazic (May 27, 1992), Lorain App. No. 91CA005170, unreported, the Ninth District Court of Appeals lumped the two doctrines together, using the label "sudden emergency/sudden entrance exception." Id. at 4. Nonetheless, other cases suggest a more expanded definition of sudden emergency than unanticipated lane obstruction: "In a negligence action, the so-called "emergency doctrine" applies only where there was a sudden and unexpected occurrence of a transitory nature which demanded immediate action without time for reflection or deliberation * * *." Miller v. McAllister (1959), 169 Ohio St. 487, paragraph six of the syllabus. Accordingly, the doctrine of sudden emergency is applicable to a situation where a defendant driver suffers a heart attack and loses control of the vehicle. Fitas v. Estate of Baldridge (1995), 102 Ohio App.3d 365, 369. The sudden emergency doctrine is also applicable in non-traffic tort actions, such as a suit for a negligent shooting. See Heidbreder v. Northampton Twp. Trustees (1979), 64 Ohio App.2d 95. We are thus compelled that the sudden entrance doctrine is a more specific form of the broader doctrine of sudden emergency, and that the two are not necessarily duplicative. In that light, we consider the trial court's rendition of jury instructions on these defenses. In determining the appropriateness of jury instructions, we review the instructions as a whole. Wozniak v. Wozniak (1993), 90 Ohio App.3d 400,410. If the jury instructions, in their entirety, fairly and correctly state the law applicable to the evidence presented, reversible error will not be found merely on the possibility that the jury may have been misled. Ohio Farmers' Ins. Co. v. Cochran (1922), 104 Ohio St. 427. "* * * The mere fact that a legal proposition is repeated in an instruction is not ground for reversal, provided it is correct in itself, unless it appears that the party complaining was prejudiced thereby, or that such repetition was unnecessary and was made by way of emphasis or for the purpose of influencing the decision of the jury." Billie v. Mutchler (September 30, 1994), Columbiana App. No. 93-C-04, unreported, at 3, citing 89 Ohio Jurisprudence 3d 388-390, Trial, Sec. 308. The decision to repeat jury instructions is within the trial court's discretion. State v. Carver (1972), 30 Ohio St.2d 280,289. Viewing the instructions in their entirety, we find that the trial court correctly stated the law applicable to the evidence presented. Appellee's portrayal of the collision suggests that appellant's actions in turning into the coffee shop, causing appellee to swerve to the right, into the parking lot entrance area where they collided, created what could reasonably be labeled as an overlapping sudden entrance and sudden emergency condition. However, we are disinclined to hold that issuing both instructions resulted in prejudice as a matter of law. Absent further jury interrogatories, nothing in the record supports the allegation that the instructions, even if considered repetitive, inherently misled or improperly influenced the jury. Appellant's First Assignment of Error is overruled.
Appellant cites Eshelman v. Wilson (1988), 55 Ohio App.3d 16, in support of his position. In Eshelman, the appellant was presumptively negligent in striking a vehicle in front of her (itself already part of a multi-vehicle winter collision), but was injured soon thereafter while hastening to jump out of the path of a third vehicle, driven by the appellee, John Wilson. The appellate court found error in jury instructions referencing appellant's initial negligence, as the real issue " *** was whether appellant acted negligently after her car came to rest among the other cars involved in the accident." Id. at 18. We therefore find appellant's reliance on the cited authority misplaced. In the case sub judice, there is not found the "two separate courses of conduct" so critical in Eshelman. See Eshelman at 18. Appellee herein testified that he could not recall whether he saw appellant's brakelights or taillights, in comparison to appellant's averments that he did use his signal. As such testimony, and the credibility thereof, would clearly weigh in the jury's determination of negligence, we are persuaded that the cited instructions correctly stated the law applicable to the evidence. Ohio Farmers' Ins., supra. The charge to the jury was not prejudicial to the rights of appellant. Appellant's Second Assignment of Error is overruled.
For the reasons stated in the foregoing opinion, the decision of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, P.J. Gwin, J., and Edwards, J., concur.