Knapp v. Stanford

• Decision Date: 06 August 1980
• Docket Number: No. 51749,51749
• Citation: 392 So.2d 196
• Parties: Robert KNAPP v. James B. STANFORD.
• Court: Mississippi Supreme Court

Page 196

392 So.2d 196

Robert KNAPP v. James B. STANFORD.

No. 51749.

Supreme Court of Mississippi.

Aug. 6, 1980.

Rehearing Denied Jan. 21, 1981.

C. R. McRae, Pascagoula, for appellant.

Bryan, Nelson, Allen, Schroeder & Backstrom, John W. Chapman, Pascagoula, for appellee.

Before ROBERTSON, LEE and BOWLING, JJ.

BOWLING, Justice, for the Court:

Appellant appeals from an adverse jury verdict and judgment in the Circuit Court of Jackson County. His declaration alleged that he sustained serious personal injuries in a motor vehicle accident that occurred on the night of December 31, 1977. He assigns several errors in requesting a reversal of the cause. We find that only one alleged error has merit and this error requires a reversal for a new trial. The lower court erred in granting what has commonly been known as a "sudden emergency" instruction.

We stop here and caution those who might hurriedly read the first part of this opinion and overlook the final part that the Court by its inherent power is hereby abolishing the so-called doctrine of "sudden emergency" as it applies to negligence actions.

At about eleven o'clock P.M., on the night in question, appellant was a passenger in the rear seat of a vehicle known as a "Blazer" owned and operated by appellee. The vehicle was being driven in a westerly direction on U.S. Highway 90, a few miles west of the City of Pascagoula, Mississippi. The accident occurred as the highway was beginning to make "a long sweeping left directional curve." Admittedly, the right wheels of the vehicle first went off the right edge of the hard surface part of the highway and when it came back onto the highway the vehicle turned over two or three times and landed in the ditch on the left side of the highway.

The testimony regarding the occurrence, including the speed, was conflicting so that the true facts were for the jury to determine. Appellee testified that he was operating his vehicle on the proper side of the road at a reasonable speed when a vehicle being operated from the opposite direction began coming over on appellee's side of the roadway; that it was necessary for him to turn his vehicle to the right, which caused the right wheels to be driven onto the highway shoulder and down the shoulder. He further testified that when he attempted to drive the vehicle completely back onto the hard surface that the raised part of the hard surfaced road caused him to lose control of his vehicle, resulting in its turning over as hereinbefore stated.

Appellant testified that the vehicle was being operated at a high rate of speed; that a few seconds before the accident occurred appellee stated that he was traveling approximately 90 or 95 miles per hour. Appellant stated that he did not see another vehicle on the roadway at any time.

Under the above general statement of the facts, appellee requested and was granted what is commonly known as the "sudden emergency" instruction. This instruction reads as follows:

The court instructs the jury that under the law when a person is confronted with a sudden emergency not of his own making and is by reason thereof placed in a position of peril to himself without sufficient time in which to determine with certainty the best thing to do, he is not held to the same accuracy of judgment as is required of him under ordinary circumstances, and in this case if you believe from a preponderance of the evidence, that James B. Stanford, immediately prior to the accident in question was driving his vehicle on his right side of the road, at a reasonable rate of speed and he was suddenly, without warning, confronted with the vehicle driven by persons unknown within James Standford's lane of traffic and that the presence of the other vehicle constituted a sudden emergency which was not of a making of the defendant, James B. Stanford, and if you further find from a preponderance of the evidence that after having been confronted with such sudden emergency, if any, the defendant, James B. Stanford, used the same degree of care that a reasonably prudent automobile driver would have used under the same or similar unusual circumstances, if any, but was unable to avoid the accident giving rise to this lawsuit, then the defendant, James B. Stanford, was not guilty of negligence which proximately caused the collision in question, and in that event, it would be your sworn duty to return a verdict for the defendant, James B. Stanford.

We hold that even assuming the truthfulness of appellee's testimony, the granting of this instruction to the jury was error. According to appellee, the "sudden emergency" existed when an approaching vehicle in Stanford's lane of travel caused him to drive the right wheels of his "Blazer" off the road surface. This resulted in the right wheels of the vehicle traveling down the shoulder of the roadway. Appellee was positive in his testimony that the cause of the vehicle overturning was the manner in which the vehicle returned to the hard surface part of the roadway. Admittedly, appellee at no time applied his brakes. A photograph introduced in evidence clearly showed that the road surface had recently been repaved. Appellee contended that this newly paved surface raised the road level some six or eight inches above the level of the road shoulder, and that this condition caused him to lose control of his vehicle.

The distance the vehicle traveled with the right wheels on the shoulder before appellee's attempt to return to the hard surface is disputed. Regardless of this, it is clear that the "sudden emergency" was over and that another factor caused the driver to lose control of the vehicle. As stated above, it is undisputed that the sole cause of the accident was either the manner in which appellee attempted to drive back onto the road surface, the speed of the vehicle, or the fact that the right wheel or wheels caught on the raised road surface causing the vehicle to overturn.

The testimony is positive that the lights of the vehicle were burning and the appellee was looking ahead prior to his attempt to return to the roadway. As stated above, he contends that the edge of the blacktop was six or eight inches higher than the roadway shoulder. If this was true, the situation clearly was seen, or should have been seen, by appellee prior to his attempt to return to the highway without applying his brakes. The principle of law is clear and has been repeated a number of times that a person is charged with seeing that which he should have seen and that which is in plain view, open and apparent. Campbell v. Schmidt, 195 So.2d 87 (Miss.1967); Stewart v. White, 220 So.2d 271 (Miss.1969); Tippit v. Hunter, 205 So.2d 267 (Miss.1967); Layton v. Cook, 248 Miss. 690, 160 So.2d 685 (1969); Shideler v. Taylor, 292 So.2d 155 (Miss.1974).

It is inescapable, therefore, that there was a jury question as to whether the appellee saw, or should have seen, the alleged dangerous condition within the range of his headlights prior to attempting to return to the hard surface, and was negligent in the action he took.

For all the above stated reasons, we hold that the "sudden emergency" instruction did not apply to the undisputed facts in this case, and it is necessary to reverse the case for that reason.

THE DOCTRINE OF SUDDEN EMERGENCY IN NEGLIGENCE CASES IS

HEREBY ABOLISHED PROSPECTIVELY

Over the years we have cautioned trial attorneys in a large number of cases regarding the danger of requesting and securing the so-called "sudden emergency" instruction. During the past twenty-five years, this Court has considered approximately twenty-seven cases on appeal involving the propriety of the instruction either in its language or applicability and out of those cases approximately twenty have been reversed because the instruction was erroneous in some manner. As was recently said in Gates Rubber Co. v. Duke, 367 So.2d 910 (Miss.1979):

Sudden emergency instructions have been granted frequently in automobile accident cases. In most situations they are doubtful when requested and dangerous to a party's cause when given.

The hazard of relying on the doctrine of "sudden emergency" is the tendency to elevate its principles above what is required to be proven in a negligence action. Even the wording of a well-drawn instruction intimates that ordinary rules of negligence do not apply to the circumstances constituting the claimed "sudden emergency." Also it tends to confuse the principle of comparative negligence that is well ingrained in the jurisprudence of this State. The fallacy is pointed out in the instruction itself when after seemingly commenting on the evidence, the court instructs that the defendant should have "used the same degree of care that a reasonably prudent automobile driver would have used under the same or similar unusual circumstances." In this Court's opinion, the same rules of negligence should apply to all circumstances in a negligence action and these rules of procedure adequately provide for instructions on negligence. This Court indicated its disfavor of the "sudden emergency" doctrine as early as 1951 in the case of Jones v. Dixie Greyhound Lines, 50 So.2d 902 (Miss.1951), where it was said:

The emergency rule is not an exception to the general rule requiring reasonable care. The existence of an emergency is simply one of the circumstances contemplated by the normal standard of care, in seeking to ascertain whether the defendant acted as an ordinarily prudent and careful person would have done under the same circumstances. 5 Am.Jur., Automobiles, Sec. 171. Where an actor is confronted with a sudden emergency, the law does not require of him more than it is reasonable to expect of him under the circumstances which confront him. Although the actor cannot be held to the same standard of conduct as one who has had an opportunity to reflect, this does not mean that any different standard is to be applied in an emergency. The conduct required is...