Lovely v. Keele

• Citation: 333 N.E.2d 866,166 Ind.App. 106
• Decision Date: 24 September 1975
• Docket Number: No. 3--374A50,3--374A50
• Parties: Aleda M. LOVELY and Charles E. Lovely, Plaintiffs-Appellants, v. Cecil E. KEELE, Defendant-Appellee.
• Court: Court of Appeals of Indiana

Page 866

333 N.E.2d 866

166 Ind.App. 106

Aleda M. LOVELY and Charles E. Lovely, Plaintiffs-Appellants, v. Cecil E. KEELE, Defendant-Appellee.

No. 3--374A50.

Court of Appeals of Indiana, Third District.

Sept. 24, 1975.

Rehearing Denied Oct. 30, 1975.

Phil M. McNagny, Jr., Gates, Gates & McNagny, Columbia City, for plaintiffs-appellants.

Benton W. Bloom, Bloom, Bloom & Flect, Columbia City, for defendant-appellee.

GARRARD, Judge.

Aleda Lovely was injured when the automobile in which she was a passenger struck the rear of a pickup truck. The truck, operated by defendant Keele, had just braked to a stop on the highway.

Suit was commenced by Lovely and her father to recover for her personal injuries and the medical expenses incurred. Trial by jury resulted in a verdict for Keele. In sending the case to the jury, the court gave instructions on sudden emergency and the statutory duty of a driver not to stop without signalling or until the stop can be made with reasonable safety.

On appeal Lovely contends (a) it was error to instruct on sudden emergency; (b) the evidence was insufficient to establish an excuse for Keele's stopping without signalling his intention; (c) it was error to refuse instructions tendered by Lovely on sudden emergency and the duty applicable to stopping a vehicle on a highway.

The basic facts disclose that Keele was driving west on a two-lane highway approaching a bridge over the Eel River. At this time there were three cars stopped on the other side of the bridge (cars no. 1, no. 2 and no. 3).

Car no. 1 was originally also headed west. It then went west a short distance made a 'U' turn and came back to the other two, where it stopped while the drivers conversed. As Keele approached the bridge, this car then accelerated rapidly, fishtailed, straightened out and crossed the bridge. Keele testified that he thought this car would hit him head on from the angle at which he observed it.

Car no. 2, which Keele did not recall at trial, was stopped on the south side of the road headed east toward Keele. When car no. 1 pulled out, it followed but at a moderate pace. Its driver testified at the trial that at the moment of the Lovely-Keele collision, his car was in the eastbound lane right beside Keele's truck.

Car no. 3 was headed west and stopped on the berm west of the bridge. When the other two cars started, this car also started up and pulled out into the westbound lane of traffic. When this occurred, Keele applied his brakes and stopped. He was then struck from behind by the automobile in which Lovely was riding. Although the evidence was conflicting, Keele testified that when car no. 3 drove onto the roadway and he determined to stop, the car was not more than two carlengths away.

We recognize the essential redundancy contained in proper instructions defining negligence and presenting the sudden emergency doctrine. Indeed, giving a sudden emergency instruction has been held harmless error even though the instruction was not warranted by the evidence since the duty imposed under the instruction merely presents the standard for determining negligence. See, e.g. Baker v. Mason (1968), 253 Ind. 348, 242 N.E.2d 513; Spears v. Aylor (1974), Ind.App., 319 N.E.2d 639.

Nevertheless, where supported by the evidence, the propriety of giving such instructions is well established in Indiana. Zoludow v. Keeshin Motor Express (1941), 109 Ind.App. 575, 34 N.E.2d 980; Bundy v. Ambulance Indianapolis Dispatch, Inc. (1973), Ind.App., 301 N.E.2d 791.

Juries are instructed in order that the jurors may have a clear, fairly stated understanding of the law that applies to the case before them. The instruction on sudden emergency may serve this purpose. By drawing specific attention to the emergency, if it is found to exist, the instruction may amplify the definition of negligence in terms of facts the jury may find. At the same time, it cautions the jury that one cannot seek shelter in circumstances he has himself negligently created.

Lovely correctly points out the legal principles involved in application of the doctrine: The actor must not have created or brought about the emergency through his own negligence. Redd v. Indianapolis Rys. (1951), 121 Ind.App. 472, 97 N.E.2d 501. The danger must appear to the actor to be so imminent as to leave no time for deliberation. Paxton v. Ferrell (1969), 144 Ind.App. 124, 244 N.E.2d 439. This, of course, includes the necessity of the actor perceiving the emergency. Dimmick v. Follis (1953), 123 Ind.App. 701, 111 N.E.2d 486. Finally, the apprehension of an emergency must, itself, have been reasonable. Hedgecock v. Orlosky (1942),220 Ind. 390, 44 N.E.2d 93. When these prerequisites exist, then the actor's conduct is not negligent, if a reasonable man confronted with the same circumstances might have reacted in the same fashion, even though another course of conduct would have been more judicious, or safer, or might even have avoided the injury. Gamble v. Lewis (1949), 227 Ind. 455, 85 N.E.2d 629. Thus, the doctrine of sudden emergency simple recognizes that the law of negligence does not require the same accuracy of judgment of one who has innocently been deprived of time to deliberate his actions as it imposes on one who has the opportunity for deliberation.

The determination of what conduct constitutes reasonable care is normally a question for the jury. Of course, it remains so when posed in the context of an emergency. Gamble v. Lewis, supra.

Thus, while the doctrine of sudden emergency may be helpful to the trier of fact who must determine whether negligence (or contributory negligence) has been established by a preponderance of the evidence, it might be questioned whether the distinction it poses can create an adequate predicate for error on appeal.

The instruction was properly given if it was pertinent to the facts and circumstances shown in evidence. Echterling v. Jack Gray Transport (1971), 148 Ind.App. 415, 267 N.E.2d 198. Admittedly, Keele did not contribute to the situation confronting him and did perceive it as an emergency. Although the evidence was conflicting, his testimony was sufficient to enable the jury to decide that his apprehension of peril was reasonable. The instruction was therefore properly given.

Similarly, we cannot say, upon a consideration of the evidence favoring Keele, that the only conclusion to be drawn by a reasonable man was that Keele was negligent. Accordingly, the verdict was not contrary to law on that account.

Lovely points out that the burden of establishing an excuse for violation of a duty imposed by statute rests with the one asserting the excuse. See, Larkins v. Kohlmeyer (1951), 229 Ind. 391, 98 N.E.2d 896. The then points to the instruction given to the jury based on IC 1971, 9--4--1--78, 79 and 80 (Burns Code Ed.) which recited in part that 'no person shall slow down or stop a vehicle . . . unless and until such movement can be made with reasonable safety, and then only after . . . an appropriate stop . . . signal.' The instruction advised the jury that if they found Keele violated these statutes without excuse or justification, his conduct in so doing would constitute negligence. Another instruction advised the jury that Keele had the burden of establishing excuse or...