Ebersole v. Lowengrub

• Decision Date: 01 February 1965
• Citation: 58 Del. 266,208 A.2d 495
• Parties: , 58 Del. 266 David K. EBERSOLE, Plaintiff Below, Appellant, v. Morton LOWENGRUB et al., Defendants Below, Appellees.
• Court: Supreme Court of Delaware

Page 495

208 A.2d 495

8 Storey 266, 58 Del. 266

David K. EBERSOLE, Plaintiff Below, Appellant, v. Morton LOWENGRUB et al., Defendants Below, Appellees.

Supreme Court of Delaware.

Feb. 1, 1965.

Reargument Denied April 1, 1965.

[58 Del. 268] Appeal from the Superior Court in and for New Castle County.

C. W. Berl, Jr., of Berl, Potter & Anderson, Wilmington, for appellant Ebersole.

David Snellenburg, II, of Killoran & VanBrunt, Wilmington, for appellee Lowengrub.

F. Alton Tybout, Wilmington, for appellee Becker.

Samuel R. Russell, of Herrmann, Bayard, Brill & Russell, Wilmington, for appellee Clementee.

Louis J. Finger, of Richards, Layton & Finger, Wilmington, for appellee Johnson.

Frank J. Miller of Walker, Miller & Wakefield, Wilmington, for appellee Reese.

WOLCOTT, J., SEITZ, Chancellor, and SHORT, Vice Chancellor, sitting.

WOLCOTT, Justice:

This is an appeal from judgments for the defendants in a personal injury action brought as a result of a multiple car rear-end collision occurring on the Delaware Memorial Bridge on November 10, 1958. This is the second time the cause has been before us because the grant of summary judgment in favor of some of the defendants was reversed by us in Ebersole v. Lowengrub, Del., 180 A.2d 467. Reference to that opinion will give a more elaborate statement of the facts and circumstances of the accident.

It will suffice for this appeal to state that on the occasion in question a steady stream of traffic was proceeding westerly across Delaware Memorial Bridge in both the right and left-hand lanes. In the line of traffic in the left-hand lane was a car designated as Car X, followed by cars driven by Lowengrub, Clementee, Ebersole, Becker, Reese and Johnson, respectively. At some point on the bridge Car X slowed down preparatory to turning into the right-hand lane but then swerved back into the left-hand lane causing the following cars to run into each other. Car X, after the accident, continued on its way and was never identified. Ebersole brought suit for personal injury against the named drivers.

After the close of the evidence, the Court entered directed verdicts in favor of Lowengrub, driving the first car following Car X; Clementee, driving the second car; Reese, driving the fifth car, and Johnson, driving the sixth car. The case was submitted to the jury as to the remaining defendant Becker, driving the fourth car. The jury returned a verdict for him. As a result the plaintiff Ebersole, the driver of the third car, appeals from the judgments.

Relying upon our opinion in the first appeal, Ebersole argues that the trial judge was required to submit to the jury the issue of the negligence of any defendant unless the testimony was such as to 'clearly absolve' him from liability. We think however, this is to overstate the meaning of our first opinion. In that appeal we were considering summary judgments for some of the defendants upon a record which left unexplained many circumstances which, standing alone, justified an inference of negligence as to all the defendants. The reversal in the first appeal took place because we thought the record reasonably demonstrated that material facts as to negligence were in issue as to all the defendants, and that the moving defendants had not discharged the burden thrust upon them to demonstrate to a reasonable certitude that there was no issue of fact which, if resolved against them, would have established their liability. Howard v. Food Fair Stores, Del., 201 A.2d 638.

The opinion in the first appeal did not intend to, nor, we think, did it change the usual rule to be applied by a trial judge in determining whether or not a case should be submitted to or taken from the jury. That rule is that a plaintiff must always discharge the burden of proving a prima facie case of negligence against a defendant before he has a right to have the case submitted to the jury. Wilson v. Derrickson, Del., 175 A.2d 400. Upon a motion for a directed verdict after the evidence is in the duty of the trial judge is to determine whether or not under any reasonable view of the evidence the jury could justifiably find in favor of the plaintiff and against the defendant. If such is the case, then he must submit the factual issues to the jury for its determination.

The trial judge directed verdicts in favor of the defendants Reese and Johnson, driving the fifth and sixth cars in the procession. Ebersole argues that this was error, but we think not. We have examined the record with respect to these two defendants and are of the opinion that Ebersole failed to prove that the negligence, if any, of these defendants was a proximate cause of his injuries.

The trial judge also directed verdicts in favor of defendants Lowengrub and Clementee, drivers of cars first and second, respectively.

With respect to Lowengrub, his testimony was to the effect that the traffic preceding him commenced to slow down and that he slowed down with it; that Car X started to move over into the right-hand lane and then moved back into the left-hand lane, forcing Lowengrub to come to a gradual stop. If this had been all the evidence against Lowengrub, then the direction of a verdict in his favor would have been proper.

However, Clementee testified that he observed Car X start into the right-hand lane and then return to the left-hand lane, and that this required Lowengrub to come to a fast stop by applying his brakes hard. This testimony is in direct conflict with that of Lowengrub and creates an issue of fact as to whether or not Lowengrub was following Car X too closely or failed to maintain a proper lookout under the circumstances, thereby creating an emergency. It is sufficient, we think, for the jury to make an inference of negligence.

With respect to Clementee, it is clear that his car struck the car of Lowengrub. Under the circumstances, we think that the jury could quite properly infer that he was following too closely or failed to keep a proper lookout, thereby causing an emergency.

This being so, the jury could have concluded that the joint or several negligence of Lowengrub and Clementee careated the emergency which forced Ebersole to stop suddenly and be struck in the rear. The judgments as to them, accordingly, are reversed.

The trial judge submitted only Ebersole's case against Becker to the jury which returned a verdict in favor of Becker. Ebersol seeks reversal of this judgment on the ground of alleged errors in instructions to the jury.

First, Ebersole argues that it was error for the jury to have been instructed upon the so-called Emergency Rule. This rule is to the effect that when a person is confronted with a sudden emergency not caused by his own negligence he may not be charged with negligence merely because he failed to adopt the best course of action if, under the circumstances, he acted as a reasonably prudent person would have acted.

Ebersole argues the instruction was erroneously given because, first, there was no showing that Becker had any choice of alternates and, second, that in order for the rule to be applicable Becker must have been free of negligence at the time the emergency arose. It is argued that since Becker admitted he would have struck Ebersole no matter what he did, that is an admission of negligence making the rule inapplicable.

It appears that the complained of instruction was made applicable to both Ebersole and Becker, thus giving both parties its benefit. We think it probable that the facts of this accident made the application of the Emergency Rule inappropriate for it seems apparent that neither Ebersole nor Becker had a choice of action. Nevertheless, we think the error, if any, was nonprejudicial for the reason that each party was charged by the other with negligence and, thus, each received the benefit of the instruction.

Next, Ebersole charges error in the instruction to the jury on unavoidable accident. Fundamentally, the argument is that the charge should not have...