dissenting.
While I concur as to the majority's holding regarding summary judgment, I respectfully dissent as to its holding Palmeter's negligence created the sudden emergency. The majority here has simply reweighed the evidence on its own, then substituted its judgment for that of the trial court and jury in violation of several bedrock principles of Indiana appellate review. The first of these principles is this court does not reweigh the evidence. We view the evidence and all inferences which may be reasonably drawn therefrom in a light most favorable to the verdict. Where the evidence is in conflict and more than one reasonable conclusion can be drawn from it, a reviewing court cannot say the jury's verdict is contrary to law. State v. Lovett (1970), 254 Ind. 27, 257 N.E.2d 298, 303; Stone v. Manship (1987), Ind.App., 505 N.E.2d 155, 158. The function of the Court of Appeals is not to sit as a trial court, but rather to review and correct errors of law and to accept the facts as they are presented so long as probative evidence supports them. Riverside Ins. Co. v. Pedigo (1982), Ind.App., 430 N.E.2d 796, 803. Next, it is axiomatic a jury's verdict will be set aside on appeal as contrary to law only where the evidence is without conflict, only one conclusion can be reached therefrom, and the jury has reached the wrong one. Hebel v. Conrail, Inc. (1985), Ind., 475 N.E.2d 652, 662; Hinds v. McNair (1955), 235 Ind. 34, 129 N.E.2d 553, 561; Captain & Co., Inc. v. Stenberg (1987), Ind.App., 505 N.E.2d 88, 92; Cato Enterprises, Inc. v. Fine (1971), 149 Ind.App. 163, 271 N.E.2d 146, 149; Schabler v. Indianapolis Morris Plan (1968), 142 Ind.App. 319, 234 N.E.2d 655, 657. The majority's opinion violates both these constraints.
Since the burden was on Evans to prove 'Palmeter's negligence in the court below, the failure of the jury to find for Evans constitutes a negative judgment. Consequently, Evans must show Palmeter was negligent as a matter of law. Board of Com'rs of Delaware County v. Briggs (1975), 161 Ind.App. 96, 337 N.E.2d 852, 875. I do not believe the evidence supports such a conclusion. In Indiana, no inference is created a rearward driver is negligent simply because a rear-end collision occurs. Haidri v. Egolf (1982), Ind.App., 430 N.E.2d 429, 432.
The majority points to three aspects of Palmeter's conduct as being negligence, claiming they in combination make Palme-ter guilty of negligence as a matter of law. None of these acts alone make him negligent as a matter of law. Further, I do not agree with the majority these actions can be combined to make him negligent as a matter of law.
First, the majority summarizes its showcase piece of evidence as follows: Palme-ter, the truck driver, "testified at trial that he followed Kenneth Wyant at a distance of 60 feet while going about 60 miles per hour." (Majority opinion at p. 1132). All of its syllogistic reasoning emanates from this starting point. However, the evidence on that subject was conflicting at trial.
Palmeter in fact testified he was going between 55-57 miles per hour. (R. 424). Further, the investigating officer testified Palmeter was traveling under the speed limit. (R. 37). Finally, a lay witness expressed the opinion Palmeter was not speeding. (R. 437).
A witness's opinion as to speed, distance, height, size, etc., if not stated in exact figures, but given in the form of an estimate does not render that evidence any less admissible as direct evidence of an observed fact. Perry v. State (1971), 255 Ind. 623, 266 N.E.2d 4, 8. Also, a witness's opinion on an ultimate fact is admissible, in the sound discretion of the trial judge. Posey County v. Chamness (1982), Ind.App., 438 N.E.2d 1041, 1047; Carroll v. Lordy (1982), Ind.App., 431 N.E.2d 118, 122; Bell v. Horton (1980), Ind.App., 411 N.E.2d 648, 650; Palmer v. State (1977), 173 Ind.App. 208, 363 N.E.2d 1245, 1248; Rieth-Riley Const. Co., Inc. v. McCarrell (1975), 163 Ind.App. 613, 325 N.E.2d 844, 853. Also, *1136see Garr v. Blissmer (1961), 132 Ind.App. 635, 177 N.E.2d 913, 917.
Because these lay witnesses' testimony was admitted below, there was a conflict in the evidence as to Palmeter's speed. Only the jury could resolve that conflict and determine at what speed he was traveling. This court cannot do so on appeal. With this integral part of its equation missing, the majority's "simple arithmetic" determining Palmeter was covering 88 feet per second comes unglued.
Further, any such calculations were exclusively for the jury below, not this court on appeal under Indiana law. A jury may not rest its verdict on testimony opposed to the laws of nature or clearly in conflict with scientific principles because such testimony has no probative value. However, where the court cannot say as a matter of law a witness's testimony is contrary to scientific principles, the laws of nature, or the physical facts, the question of whether such testimony does so conflict is for the jury. Koppers Co., Inc. v. Inland Steel Co. (1986), Ind.App., 498 N.E.2d 1247, 1253; Connor v. Jones (1945), 115 Ind.App. 660, 59 N.E.2d 577, 581.
Next, the majority faults Palmeter for failing to keep a proper lookout, i.e., for looking into his rearview mirror at the time the accident occurred. Again, the majority errs. Whether a driver used ordinary care in keeping a lookout for others using the roadway under the facts of a particular case is a question for the jury. Thornton v. Pender (1978), 268 Ind. 540, 377 N.E.2d 613, 617, reh. denied. Palmeter testified he was checking his brakes in his rear view mirror just before the accident, Although he glanced twice at his brakes, he testified he kept the motorcycle in his side vision. Momentarily diverting one's eyes from the road is not negligence as a matter of law. Campbell v. Hammontree (1975), 163 Ind.App. 160, 322 N.E.2d 725, 726. Accordingly, we cannot say Palmeter was negligent as a matter of law because he glanced at his rear view mirror. On appeal, we view the 'evidence in a light most favorable to the verdict and all inferences which may be reasonably drawn therefrom. Stone, supra, 505 N.E.2d at 158.
Finally, the majority places some reliance, evidently, upon the fact Palmeter's blood aleohol content tested .025%, pointing out he "later admitted" he had consumed a pint of vodka the night before. Clearly, the jury below did not determine Palmeter's ability to drive was impaired thereby. Also, it is interesting to note our legislature made the same determination generally by enacting IC 9-11-1-7.5 in 1985. It provides the evidence of blood alcohol content must be at least 0.05% but less than 0.10% by weight to be relevant evidence. Thus, by today's standards, such evidence is not even relevant.
The majority found Palmeter guilty of following too closely as a matter of law and thus in violation of IC 9-4-1-73(a). That statute provides, however,
The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles, the time interval between vehicles, and the condition of the highway. (Emphasis supplied).
After factually finding Palmeter's speed, the majority calculated the feet per second he was traveling, then factored in "average reaction time" as a matter of judicial knowledge and determined Palmeter hit Wyant's motorcycle before he had time to react. The majority cites no Indiana cases as precedent for taking judicial knowledge of reaction time. It does not because it cannot. No authoritative precedent in Indiana permits us to take judicial notice of reaction time as it plays a role in determining whether a driver has violated IC 9-4-1-78(a). The question of whether a driver acted reasonably and prudently under the circumstances is strictly one for the jury's resolution as the trier of fact, at least where the evidence is conflicting, as here.
In sum, whether Palmeter was traveling at an unsafe speed; whether Palmeter kept a proper lookout; and whether Palmeter was following too closely were all questions for the trier of fact. The majority *1137errs by treating the evidence pertaining thereto as without conflict.
The sudden emergency doctrine is an affirmative defense to negligence or contributory negligence. An instruction on the doctrine is warranted where the evidence or inferences therefrom support such a theory. While the question of sudden emergency is generally an issue for the determination of the jury, the threshold determination of whether the doctrine applies and warrants an instruction rests with the trial court. Stein v. Yung (1985), Ind.App., 475 N.E.2d 52, 54, reh. denied.
Of course, the sudden emergency doctrine may not be invoked by a party who has created the situation through his own negligence. However, whether Palmeter was negligent was a factual issue for determination by the jury in this case. On appeal, this court will not disturb a jury's decision unless the evidence is without conflict, can logically lead to but one conclusion and the jury reached another one. Captain & Co., Inc., 505 N.E.2d at 93. The trial court did not abuse its discretion by giving an instruction on sudden emer-geney under the fact of this case in my opinion.
Finally, the evidence is undisputed Wyant had traveled at an even speed in front of Palmeter on dry pavement for 25 to 30 miles on a clear day. Then, for no apparent reason Wyant abruptly slowed his motorcycle without warning. The majority by its holding today impliedly finds as a matter of law such conduct was not negligent nor was it a contributing cause of the accident. I find it impossible to reach such a conclusion under the evidence supporting the judgment.
For all of these reasons, I dissent. I would affirm the trial court and jury in all things.