Foy v. Bremson, 90
| Decision Date | 26 November 1974 |
| Docket Number | No. 90,90 |
| Court | North Carolina Supreme Court |
| Parties | Barbara Jean FOY v. Thomas Edward BREMSON et al. |
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.
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.
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 relying--that 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 and 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 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.:
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