Barbara Jean FOY
v.
Thomas Edward BREMSON et al.
No. 90.
Supreme Court of North Carolina.
November 26, 1974.*443 Teague, Johnson, Patterson, Dilthey & Clay by Robert M. Clay and Dan M. Hartzog, Raleigh, for defendant-appellant Bremson.
Narron, Holdford, Babb & Harrison by William H. Holdford, Wilson, for plaintiff-appellee.
Battle, Winslow, Scott & Wiley by Robert L. Spencer, Rocky Mount, for defendants-appellees Bissette and Godwin.
BOBBITT, Chief Justice.
In her appeal to the Court of Appeals, plaintiff set forth one assignment of error, to wit: "The court erred in its charge on Issue No. I as to the DOCTRINE OF SUDDEN emergency for that it failed to charge that the sudden emergency doctrine would not be available to defendant Bremson if they should find that by his own negligence, he brought about or contributed to the emergency." (Our italics.)
The Court of Appeals did not discuss this assignment. It awarded a new trial on all issues for error in the court's instructions relating to burden of proof.
In our opinion, the court's instructions with reference to Issue No. I properly and sufficiently placed upon plaintiff the burden of satisfying the jury by the greater weight of the evidence that negligence on the part of Bremson was a proximate cause of her injuries. However, any failure to place this burden on plaintiff would not be prejudicial to her. She did not assign as error, nor does she contend, that there was error in the court's charge with reference to burden of proof in respect of Issue No. I.
*444 The jury having answered the first issue, "No," this ended plaintiff's case against Bremson in the absence of reversible error in respect of the court's instruction on the first issue with reference to the rule applicable under circumstances when a motorist is confronted by a sudden emergency. Therefore, the only question before this Court is that presented by defendant Bremson's petition for certiorari, namely, whether plaintiff is entitled to a new trial against defendant Bremson on account of the portion of the charge she assigned as error.
Under the decision of the Court of Appeals there must be a new trial of all issues arising on the pleadings as between plaintiff and defendants Bissette and Godwin, and on the alleged cross-claim of defendants Bissette and Godwin against defendant Bremson for contribution, and in respect of the alleged cross-claim of defendant Bremson against defendants Bissette and Godwin for damages on account of personal injuries and property damage sustained by him.
Plaintiff's assignment of error is based on her exception (No. 52) to the following portion of the court's charge:
"(In going back to the first issue, there's something I should have charged you as to the defendant Bremson, which I will charge you now. The defendant is relyingthat is, back to the first issue, `Was the plaintiff injured and damaged by the negligence of the defendant, Bremson?' The defendant Bremson is relying on what is sometimes called the doctrine of a sudden emergency. That is, that that is a part of the theory of negligence as to what a reasonable and prudent man would do, but specifically the law does not require a man who is confronted with a sudden emergency to exercise any more than the care that an ordinary and prudent person would exercise in a situation. So, you mustn't look here in the cold light of reason as we might do it here in the courtroom, but you must look, put yourself as reasonable men in the shoes of the defendant Bremson on the highway at that time. So, that if you find that he hadn't brought on this accident by his own negligence, if he was suddenly confronted with an emergency, his duty is to exercise only the care that an ordinarily prudent person would exercise in the same situation. If at that moment his choice and manner of action might have been followed by an ordinarily prudent person under the same conditions, he does all that the law requires of him, although in the light of after events, it appears that some different action would have been better and safer.
"So, I do instruct you there as to the doctrine of sudden emergency. You wouldn't judge the defendant Bremson in the light as we might do it in the cool thought sitting here in the courtroom, but judge him as you would judge a reasonable man to act who was confronted with a sudden emergency, if you're satisfied by the greater weight of the evidence that he was confronted by a sudden emergency.)" (Our italics.)
In his original charge on the first issue, the court gave no instruction with reference to the rule applicable under circumstances when a motorist is confronted by a sudden emergency. The quoted instruction was given immediately after completion of the court's instructions with reference to the fourth issue and immediately preceding the court's instructions with reference to the fifth issue. It was not applied or considered with reference to any specific factual situation.
"[A]n automobile driver who, by the negligence of another and not by his own negligence, is suddenly placed in an emergency and compelled to act instantly to avoid a collision or injury, is not guilty of negligence if he makes such a choice as a person of ordinary prudence placed in such a position might make, even though he made neither the wisest choice nor the one that would have been required in the exercise of ordinary care except for the emergency." 57 Am.Jur.2d, Negligence § 91 (1971). See also, 7 Am.Jur.2d, Automobiles and Highway Traffic §§ 359, 360 (1963); 60A C.J.S. Motor Vehicles § 257 (1965). Accord, Brunson *445 v. Gainey, 245 N.C. 152, 157, 95 S.E.2d 514, 518 (1956); Bullock v. Williams, 212 N.C. 113, 117, 193 S.E. 170, 172 (1937).
One cannot escape liability for acts otherwise negligent because done under the stress of an emergency if such emergency was caused, wholly or in material part, by his own negligence or wrongful act. Cockman v. Powers, 248 N.C. 403, 407, 103 S.E.2d 710, 713 (1958); Brunson v. Gainey, supra, 245 N.C. at 156, 95 S.E.2d at 517; 57 Am.Jur.2d, Negligence § 93 (1971); 65 C.J.S. Negligence § 17e (1966).
We note that the court gave the instruction quoted above rather than an instruction requested by defendant Bremson "that a person who creates the emergency or contributes to the creation of the emergency cannot take advantage of the doctrine of sudden emergency." However, the merit of plaintiff's assignment depends upon the correctness of the instruction given without regard to the correctness of the instruction requested by defendant Bremson but not given by the court.
"[T]he fact that the actor is not negligent after the emergency has arisen does not preclude his liability for his tortious conduct which has produced the emergency." 57 Am.Jur.2d, Negligence § 93 (1973). See, e. g., Rodgers v. Carter, 266 N.C. 564, 568, 146 S.E.2d 806, 810 (1966); Brunson v. Gainey, supra, at 156-157, 95 S.E.2d at 517-518. "One cannot, by his negligent conduct, permit an emergency to arise and then excuse himself on the ground that he was called upon to act in an emergency." Brunson v. Gainey, supra, 245 N.C. at 156, 95 S.E.2d at 517.
In Rodgers v. Carter, 266 N.C. 564, 568-569, 146 S.E.2d 806, 810 (1966), Justice Lake quotes with approval the following statement from the American Law Institute's Restatement of the Law of Torts, 2d Ed., § 296, viz.:
"`(1) In determining whether conduct is negligent toward another, the fact that the actor is confronted with a sudden emergency which requires rapid decision is a factor in determining the reasonable character of his choice of action.
"`(2) The fact that the actor is not negligent after the emergency has arisen does not preclude his liability for his tortious conduct which has produced the emergency.
* * * * * *
"`Where the emergency itself has been created by the actor's own negligence or other tortious conduct, the fact that he has then behaved in a manner entirely reasonable in the light of the situation with which he is confronted does not insulate his liability for his prior conduct. Such liability is not precluded by the fact that he has acted reasonably in the crisis which he has himself brought about. It is not his reasonable conduct in the emergency which makes him liable, but his prior tortious conduct creating the emergency.'"
Our decisions in Rodgers v. Carter, supra, and in Brunson v. Gainey, supra, are in accord with this statement. See also, Annot., Disabled VehiclesPersonal Injuries, 27 A.L.R. 3d 12, 312 (1969), and numerous cases cited therein.
Decision depends upon the application of these well settled legal principles to the evidence in this particular case.
Obviously, the evidence does not show that the emergency situation confronting Bremson was "brought on" solely by his own negligence. There are conflicts in the evidence with reference to whether any part of the Chevrolet truck was in Bremson's lane of travel. Too, diverse inferences may be drawn as to whether any part of the Ford truck extended into Bremson's lane of travel. Whatever the jury may have found with reference to these questions, uncontroverted evidence tends to show that the log chain had been connected to both trucks and was stretched across the lane for southbound travel during Bremson's approach to the scene of collision.
Bremson's evidence tends to show that, as he approached the scene of collision, he observed nothing except the "bright lights" *446 of a vehicle in the lane for northbound travel; and that, in the absence of notice to the contrary, he assumed this vehicle was entirely in its proper lane. His evidence tends to show he did not see any part of the Ford truck and, in the absence of notice to the contrary, he assumed his lane of travel was clear. Too, his evidence tends to show that he saw no person on or near the highway north of the trucks warning him by means of a flashlight or otherwise that he was approaching a zone of danger. Thus, when the evidence is considered in the light most favorable to Bremson, he had no reason to anticipate that he was approaching a zone of danger and therefore did not become aware of the emergency created by the obstruction of his lane of travel until immediately prior to the collision. Assuming the jury so found, there was nothing Bremson could do at that moment to avoid striking one or both trucks and directly or indirectly striking the chain.
The crucial question in respect of the applicability of the sudden emergency rule is whether Bremson, when approaching the scene of the collision, saw or by the exercise of due care should have seen that he was approaching a zone of danger, and whether his failure to decrease his speed and bring his car under control without first ascertaining the nature of the highway conditions ahead of him, constituted negligence on his part which contributed to the creation of the emergency thereafter confronting him. With reference thereto, when the evidence against defendant Bremson is considered in the light most favorable to the plaintiff, it was sufficient to permit, but not compel, a jury finding that negligence on the part of Bremson was one of the proximate causes of the emergency with which he was confronted immediately prior to the collision. In this connection, the evidence for consideration by the jury includes the testimony with reference to the lights on the Chevrolet truck, the lights on the Ford truck, and the evidence relating to Boykin's attempt to warn southbound motorists by a flashlight.
The error in the portion of the charge challenged by plaintiff's assignment is aggravated by the fact that the court gave no instruction purporting to draw into focus for decision by the jury the factual bases for determining whether the sudden emergency rule was available to Bremson. We hold that the portion of the charge to which plaintiff excepted was erroneous by reason of the court's failure to instruct the jury that the sudden emergency rule would not be available to Bremson in the event his prior negligence contributed to the creation of the emergency as a proximate cause thereof. As in Rodgers v. Thompson, 256 N.C. 265, 123 S.E.2d 785 (1962), where a new trial was ordered on account of error in the charge, the following statement by Justice (later Chief Justice) Parker is appropriate here, viz.: "The court in its charge on conduct in emergencies did not state to the jury that the doctrine does not apply if the peril or emergency was caused or contributed to by plaintiff's negligence or was occasioned by concurrent negligence of the plaintiff and defendants." Id. at 275, 123 S.E.2d at 791.
Although unrelated to the basis of decision herein, we note that the second paragraph of the portion of the charge to which Exception No. 52 is addressed placed upon Bremson the burden of establishing by the greater weight of the evidence that he was confronted by a sudden emergency. This portion of the instruction was erroneous and prejudicial to Bremson. The sudden emergency rule is a mere application of the rule of the prudent man. It raises no separate issue with reference to the burden of proof. See, Annot., Sudden Emergency Instructions, 80 A.L.R. 2d 5, 30 (1961). The burden of proof rested upon plaintiff to satisfy the jury by the greater weight of the evidence that negligence on the part of defendant Bremson proximately caused her injuries. Instructions with reference to the rule applicable when a motorist is confronted by a sudden emergency should be given whenever the evidence discloses a factual *447 situation appropriate for such instructions. Rodgers v. Carter, supra, 266 N.C. at 568, 146 S.E.2d at 810.
Although defendants Bissette and Godwin did not petition for certiorari, they request this Court in the exercise of its general supervisory jurisdiction to consider their contentions that the trial judge erred in denying their motions for directed verdicts in respect of plaintiff's claim and in respect of defendant Bremson's cross-action. Suffice to say, we do not deem this a situation that calls for the exercise of our supervisory jurisdiction.
The foregoing leads to this conclusion: Decision of the Court of Appeals awarding a new trial on all issues is affirmed. However, in respect of the issues arising on the pleadings in plaintiff's action against defendant Bremson, the new trial is awarded for error in the court's instructions in connection with Issue No. I with reference to the doctrine of sudden emergency, not for error in respect of the burden of proof with reference to the issues as between plaintiff and defendant Bremson. With this modification in respect of the ground of decision, the decision of the Court of Appeals is affirmed.
Modified and affirmed.