Kreidt v. Burlington Northern RR

Decision Date26 July 2000
Docket NumberNo. 990381.,990381.
Citation615 N.W.2d 153,2000 ND 150
PartiesTimothy KREIDT, Plaintiff and Appellee, v. BURLINGTON NORTHERN RAILROAD, n/k/a Burlington Northern Santa Fe, Defendant and Appellant, and Christine Koltes, Defendant.
CourtNorth Dakota Supreme Court

Timothy Q. Purdon, Dickson Law Office, Bismarck, for plaintiff and appellee.

James S. Hill (argued) and Rebecca S. Thiem (appearance), Zuger Kirmis & Smith, Bismarck, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Burlington Northern Santa Fe Railroad ("BNSF") appealed from an order denying its motion for a new trial. We affirm.

[¶ 2] Timothy Kreidt suffered injuries arising out of an accident involving 26 vehicles and nine separate collisions on February 10, 1995. The collisions occurred in the westbound lane of I-94, west of Mandan, near the Crown Butte Exit. According to trial testimony, weather conditions deteriorated as motorists traveled west of Mandan, resulting in almost zero visibility.

[¶ 3] Some vehicles, including the one carrying Mary and Robert Steffan, stopped along the shoulder of the highway due to the poor visibility. A car driven by Christine Koltes stopped in the driving lane of traffic next to some cars also stopped on the shoulder. Shortly after stopping, Koltes was "rear-ended." Soon after, Marvin Sutheimer, driving a BNSF truck in the driving lane, came upon a row of cars stopped on the shoulder and the row of cars now stopped in the driving lane. Sutheimer turned into the passing lane to avoid the cars in the driving lane. Sutheimer stopped in the passing lane next to Koltes.

[¶ 4] Several collisions ensued. At some point Kreidt approached the area where the three rows of cars were stopped. Kreidt's vehicle was hit from behind and he suffered serious physical injuries. Testimony at trial conflicted as to whether Kreidt rear-ended someone before or after he was rear-ended.

[¶ 5] Kreidt sued Koltes and BNSF, alleging their negligence in blocking the interstate proximately caused his injuries. A jury returned a verdict assigning 45 percent of the negligence to BNSF, 45 percent to Koltes and 10 percent to Kreidt.


[¶ 6] On appeal, BNSF challenges the jury instructions given by the trial court. Jury instructions must fairly and adequately inform the jury of the applicable law. Huber v. Oliver Cty., 1999 ND 220, ¶ 10, 602 N.W.2d 710. Although a party is entitled to instructions which present that party's theory of the case, the trial court is not required to instruct the jury in the exact language sought by a party if the court's instructions adequately and correctly inform the jury of applicable law. Olson v. Griggs Cty., 491 N.W.2d 725, 729 (N.D.1992). On appeal, jury instructions must be viewed as a whole, and if they correctly advise the jury of the law, they are sufficient although parts of them, standing alone, may be erroneous and insufficient. Huber, at ¶ 10.


[¶ 7] BNSF argues the district court erred in refusing to give a sudden emergency instruction. BNSF proposed the following instruction:

When a person finds himself confronted with a sudden emergency, which was not brought about by his own negligence or want of care, such person has the legal right to do what appears to him at the time he should do, so long as he acts in a reasonably prudent manner as any other person would have done under like or similar circumstances, to avoid any injury, and if he does so act, he will not be deemed to have been negligent even though[ ] it might afterwards be apparent that some other course of action would have been safer.

With the adoption of comparative negligence, some courts have found the sudden emergency doctrine to be no longer useful and even detrimental in negligence cases. In Ebach v. Ralston, 510 N.W.2d 604, 608 (N.D.1994), the Ebachs argued the district court erred in giving a sudden emergency instruction. We stated in Ebach

the continued use of a separate sudden emergency instruction in negligence actions has been criticized in recent years, because the typical sudden emergency instruction may suggest a lower standard of care for a sudden emergency, thus confusing responsibility for accidents under comparative negligence principles, and because it adds little to ordinary negligence instructions.

Id. at 609.

[¶ 8] We noted some courts have explicitly held the sudden emergency instruction should never be given in negligence actions, while others have discouraged the use of a separate sudden emergency instruction in negligence actions. Id. Although "we share[d] some of the concerns of courts that have criticized the use of a separate sudden emergency instruction in negligence actions," we nevertheless concluded in Ebach:

carefully drafted instructions about a driver's standard of ordinary care under the circumstances of an emergency, coupled with instructions about the driver's standard of ordinary care before the emergency arose, give adequate guidance to the jury and latitude to the parties to argue that a sudden emergency may have been caused by the driver's lack of prior care and should have been anticipated. Carefully drafted instructions about those situations direct a jury to assess fault for deviations from the negligence standard of ordinary care under emergency circumstances and are consistent with the assessment of fault under comparative negligence. See Young v. Clark[, 814 P.2d 364 (1991)

]; Compton v. Pletch[, 561 N.E.2d 803 (Ind.App.1990)]. Although an instruction that unduly emphasizes the sudden emergency doctrine is not acceptable, we nevertheless decline to reverse this verdict solely on the basis of the instructions given.

Id. at 610.

[¶ 9] The sudden emergency doctrine is not so much a doctrine as an illustration of how negligence law is applied in a specific situation. See Erickson v. Schwan, 453 N.W.2d 765, 768 (N.D.1990)

(noting the focus for determining tort liability has shifted from traditional, doctrinal labels to the singular, inclusive concept of fault). While the sudden emergency instruction may be given in appropriate cases, it is not indispensable. Thus, refusal to give a sudden emergency instruction is not by itself enough to constitute error.

[¶ 10] The instructions given by the trial court allowed BNSF to argue its theory of the case, i.e., that Sutheimer did what was reasonable under the abnormal circumstances. The court's instruction on "ordinary negligence" included the following, "Negligence is a relative term. Whether a certain act or failure to act is negligence depends upon the facts and circumstances of each particular case." Counsel for BNSF stated in closing argument:

And it came at a time when there was nothing out there. He [Sutheimer] was driving where he didn't even know where he was. When he sat on the witness stand this morning when I recalled him, that was the question I asked him about, do you know where you were? The answer is, "no."

He knew he was near Crown Butte. He knew that there was a creek in that area, and when you put a 35,000-pound vehicle down into the median, you take your chances of killing yourself or hurting yourself. So he did the most reasonable thing that one could do with the disability that was thrust upon him by the circumstance. He brings that vehicle to a halt.

Ladies and gentlemen, as I started my remarks, I said to you that, you know, it's the weather. It's the weather. When you are disabled by virtue of this weather, you are allowed to make reasonable options in order to protect yourself in all aspects of this case.

The ordinary negligence instruction that this Court will give you will tell you that you must fit the duty into the circumstances that are faced.
It's a lot different if I'm standing in a courtroom. My duty is going to be a lot different from Mr. Purdon's. I can be pushing things over, but it's a lot different when you're out on the highway system. It's a lot different, you must focus it on those circumstances.

[¶ 11] The instructions given by the trial court allowed BNSF to argue its theory of the case and adequately informed the jury of the law.


[¶ 12] BNSF also asserts the court erred in its instruction on stopping a vehicle on a roadway. The court instructed the jury:

Upon any highway outside a business or residence district, a person may not stop, park, or leave standing any vehicle, whether attended or unattended, upon the roadway when it is practicable to stop, park, or leave the vehicle off the roadway. In any event, not less than twelve (12) feet of unobstructed width of the roadway opposite the vehicle at rest must be left for the free passage of other vehicles and a clear view of the stopped vehicle must be available for a distance of two hundred (200) feet in each direction upon the highway. This rule does not apply to the driver of a vehicle that is disabled in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving the disabled vehicle on the roadway. If you find a party violated this rule, you should consider the violation together with all other facts in the case to determine if the party's conduct contributed proximately to the accident.

(emphasis added). The highlighted portion above is taken nearly verbatim from statute. See N.D.C.C. § 39-10-47 (stating "This section and sections 39-10-49 and 39-10-50 do not apply to the driver of any vehicle which is disabled while on the paved or main-traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position").

[¶ 13] BNSF objected to the instruction because it did not take into account the visibility problems on the day of the accident and requested the court add the following language to the stopping instruction.

A vehicle is disabled when it cannot be further moved from its position. It is immaterial whether the cause of such immobility is a mechanical malfunction or a lack of visibility

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