Hixon v. Mathieu

• Decision Date: 31 August 1977
• Citation: 377 A.2d 112
• Court: Maine Supreme Court
• Parties: Brent P. HIXON and Brenda J. Hixon v. Robert L. MATHIEU.

Page 112

377 A.2d 112

Brent P. HIXON and Brenda J. Hixon v. Robert L. MATHIEU.

Supreme Judicial Court of Maine.

Aug. 31, 1977.

Hart, Stinson & Lupton, P. A. by Ronald W. Lupton, Carl W. Stinson, Ronald A. Hart, Bath, for plaintiffs.

Richardson, Hildreth, Tyler & Troubh by S. Peter Mills III, Portland, for defendant.

Before DuFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ.

ARCHIBALD, Justice.

Brenda J. Hixon instituted this civil action to recover damages for her personal injuries resulting from an automobile accident. She was joined as plaintiff by her husband who demanded damages for loss of consortium, for medical expenses incurred on behalf of his wife, and for property damage. The jury returned a verdict in favor of the defendant, from which both plaintiffs have appealed after their motions for judgment n. o. v. (Rule 50(b), M.R.C.P.) and for a new trial (Rule 59(a), M.R.C.P.) were denied.

We sustain the appeal and order a new trial.

The defendant, accompanied by his fiancee, her brother and sister, was operating an automobile owned by his parents. While in the business section of Brunswick this vehicle collided with one being driven by Brenda J. Hixon, which was then stationary. ¹

The jury, without objection, was given an instruction comparable to that which is frequently given when an actor is faced with a sudden, unexpected emergency. ² This opinion is confined to a determination of whether giving this instruction was "inconsistent with substantial justice." Rule 61, M.R.C.P.

The facts become critical.

The defendant, age nineteen, and without extensive driving experience, was proceeding on Route 196 in Topsham. This road leads easterly from Lewiston to Topsham and intersects with Route 201, the north-south highway between Brunswick and Augusta.

The defendant accelerated his vehicle when approximately three-tenths of a mile from this intersection. When he removed pressure from the accelerator pedal, he noticed that it "was not decreasing in speed." He estimated his speed then to be 60 miles per hour. The defendant next negotiated the intersection with Route 201 and continued toward Brunswick. He drove through Topsham village, crossed the bridge over the Androscoggin River, and entered Main Street in Brunswick via the overpass above the Bath-Brunswick Road, before the collision occurred. It was approximately 1.4 miles from the point of impact with the Hixon car to the intersection of Routes 196 and 201. The total distance covered, therefore, between the time the accelerator apparently "stuck" and the collision was 1.7 miles, and required approximately two minutes.

In driving through Topsham the defendant avoided collision with several vehicles, save one, by straddling the center of the highway. After crossing the Androscoggin River Bridge, his vehicle collided with two more automobiles before "rear-ending" the Hixon car.

There was no evidence indicating any prior functional problem with the defendant's automobile. An examination after the accident indicated a malfunction in the carburetor that manipulation of the foot pedal could not alleviate.

Critical to the result here reached are the defendant's physical and mental reactions during his two minute traverse of the 1.7 miles. The trial transcript contains numerous examples of both. ³

The legal problem precipitated by these facts is whether it was "inconsistent with substantial justice" to have given the jury the instruction.

We have examined cases in Maine dealing with this instruction and are unable to find any in which it has been given when the interval between the creation of the so-called emergency and the ensuing conduct has been as extensive as here, either in terms of time or distance.

See, e. g., Packard v. Whitten, 274 A.2d 169 (Me.1971) (an illegally entering vehicle only 4' to 8' distant when first observed); Hoch v. Doughty, 224 A.2d 54, 56 (Me.1966) (doctrine likened to making "split second" decisions); St. Johnsbury Trucking Co. v. Rollins, 145 Me. 217, 74 A.2d 465 (1950) (driver had 150' to avoid a vehicle blocking the highway); Smith v. Joe's Sanitary Market, Inc., 132 Me. 234, 235, 169 A. 900 (1933) (vehicles only "a car length or a car length and a half away"); Coombs v. Mackley, 127 Me. 335, 143 A. 261 (1928) (vehicles within less than 300' of each other); Blair v. Lewiston, Augusta & Waterville St. Ry., 110 Me. 235, 85 A. 792 (1913) (only seconds involved).

If there is sufficient time, even though very brief, in which to take deliberate action after being confronted with a perilous situation, the conduct of an actor is not to be judged under the emergency rule. Bonefant v. Chapdelaine, 131 Me. 45, 50, 158 A. 857, 859 (1932) (the actor "had time to consider" the alternatives); Gravel v. Roberge, 125 Me. 399, 134 A. 375 (1926) (where driver unnecessarily "lost his head").

Other jurisdictions have reached similar results under comparable circumstances. The Wisconsin Court has succinctly stated the rule:

"The application of the emergency rule rests upon the psychological fact that the time which elapses between the creation of the danger and the impact is too short under the particular circumstances to allow an intelligent or deliberate choice of action in response to the realization of danger. Prosser, The Law of Torts, 3d ed., ch. 5, p. 171, sec. 33 . . . ."

Cook v. Thomas, 25 Wis.2d 467, 471, 131 N.W.2d 299, 302 (1964). See also Hercules Powder Co. v. Crawford, 163 F.2d 968 (8th Cir. 1947); Uzich v. E. & G. Brooke Iron Co., 76 F.Supp. 788 (E.D.Pa.1947), aff'd, 167 F.2d 633 (3d Cir. 1948); Bundy v. Ambulance Indianapolis Dispatch, Inc., 301 N.E.2d 791 (Ind.App.1973); Moore v. Funk, 155 Ind.App. 545, 293 N.E.2d 534 (1973); Hedgecock v. Orlosky, 220 Ind. 390, 44 N.E.2d 93 (1942); Kneeshaw v. Detroit United Ry., 169 Mich. 697, 135 N.W. 903 (1912).

In summary, our analysis of decisions generally has disclosed no instance where the emergency doctrine was found to be applicable on facts comparable to those disclosed in this record. Using language found in Restatement, Second, Torts § 296, comment (b), an actor's conduct may be judged under the emergency doctrine delineated by § 296(1) ⁴ if the actor is found

"in a position where he must make a speedy decision, between alternative courses of action and that, therefore, he has no time to make an accurate forecast as to the effect of his choice."

The jury instructions, read in their totality, clarify beyond possibility of disagreement that in order to exonerate the appellee from negligence the jury was required to consider his conduct only in the context of the emergency instruction.

As we have carefully pointed out in our summary of the facts, the appellee had an opportunity to deliberate and to determine a course of conduct on not one, but on at least eleven occasions. He did not act by making "split second decisions." As we see the undisputed facts, the sudden emergency occurred on Route 196 and not on Main...