Moran v. Atha Trucking, Inc.

Citation540 S.E.2d 903,208 W. Va. 379
Decision Date05 December 1997
Docket Number No. 24081., No. 24012
CourtSupreme Court of West Virginia
PartiesRay Junior MORAN and Mary V. Moran, Husband and Wife, Appellants, v. ATHA TRUCKING, INC., A Corporation; James A. Fornash; Chuck Kirkpatrick; and E. & S. Coal Company, Inc., Appellees. Deborah A. Fletcher, Appellant, v. Raymond R. Sias, Appellee.
Concurring Opinion of Justice Starcher January 16, 2001.

Jacques R. Williams, Esq., Hamstead, Hamstead & Williams, Morgantown, West Virginia, Attorney for the Morans.

James M. Wilson, Esq., Ancil G. Ramey, Esq., Steptoe & Johnson, Clarksburg, West Virginia, Attorneys for Atha Trucking, Inc. and Fornash.

Alex L. Solomon, Esq., Solomon & Solomon, Morgantown, West Virginia, Attorney for Kirkpatrick and E. & S. Coal Company, Inc.

Robert A. Taylor, Esq., David L. Stuart, Esq., Masters & Taylor, Charleston, West Virginia, Attorneys for Deborah A. Fletcher.

Andrew L. Paternostro, Esq., Rose & Atkinson, Charleston, West Virginia, Attorney for Raymond R. Sias.

MAYNARD, Justice:

The two cases before us were consolidated for argument and opinion. In the first case, the appellants, Ray Junior Moran and Mary V. Moran, appeal the September 13, 1996 order of the circuit court of Harrison County denying their motion for a new trial which was based exclusively on the circuit court's refusal to give a sudden emergency instruction. In the second case, the appellant, Deborah Fletcher, appeals the November 1, 1995 order of the circuit court of Kanawha County denying her motion for a new trial or, in the alternative, for judgment notwithstanding the verdict, on the grounds, inter alia, that the giving of a sudden emergency instruction on behalf of the appellee, Raymond Sias, was error.

In both cases we are summoned to decide whether the doctrine of sudden emergency continues to be viable under our comparative negligence scheme and, if so, what form the doctrine will now take.

I. FACTS
A. Moran v. Atha Trucking

The facts in the Moran case are as follows.1 Shortly before midnight on February 11, 1994, appellant Ray Moran left the coal mine where he worked in Harrison County, West Virginia and was driving home on the two lane highway that provides access to the mine. Driving conditions that night were treacherous due to a freezing rain that made the road extremely slippery. Moran had not traveled far when he looked ahead and saw what he perceived to be two stationary coal trucks, parked side by side, each blocking its respective lane of travel. Moran was apparently about 300 feet from the coal trucks when he first saw them.2 The coal truck in Moran's lane of travel was owned by appellee E. & S. Trucking Company and operated by appellee Chuck Kirkpatrick. The truck in the other lane, facing Moran, was owned by appellee Atha Trucking, Inc. and operated by appellee James A. Fornash. Whether and to what degree these two coal trucks were blocking the roadway were in dispute at trial.3

Moran testified that upon seeing the trucks blocking the roadway he "panicked" and attempted to decrease the speed of his vehicle by applying the brakes and shifting the automatic transmission of his front-wheel drive automobile into a lower gear. This resulted in Moran's vehicle sliding uncontrollably down the roadway, crossing the center line, and colliding into the stationary Atha truck.

As a result of this collision, Moran and his wife filed a personal injury action against the appellees. Following a three day jury trial, the jury assessed Moran with one hundred percent of the fault. The appellants moved for a new trial asserting that they were prejudiced by the circuit court's failure to instruct the jury on the sudden emergency doctrine. By order of September 13, 1996, the circuit court denied the appellants' motion. The sole assignment of error presented to this Court is that the circuit court erred in refusing to instruct the jury concerning the doctrine of sudden emergency.

B. Fletcher v. Sias

In the second case, the appellant, Deborah Fletcher, left her home, located off the northbound lanes of Greenbrier Street in Charleston, West Virginia shortly before 6:00 a.m. on December 8, 1993 to catch a ride to work. Fletcher crossed Greenbrier Street and waited on her ride on the southbound side of the street. When her ride did not show, Fletcher decided to return to her house in order to call her place of employment to inform her manager that she would be late for work. Fletcher proceeded to recross Greenbrier Street. She made it safely across the southbound lanes of Greenbrier Street, but was hit by a vehicle driven by the appellee, Raymond Sias, as she attempted to cross the northbound lanes.

After a short trial, the jury found Fletcher to be sixty percent at fault and Sias to be forty percent at fault. Fletcher moved for a new trial or, in the alternative, for a judgment notwithstanding the verdict, asserting, in part, that the giving of a sudden emergency instruction under the facts of this case was error and that the sudden emergency doctrine no longer represents the law in West Virginia. The circuit court denied Fletcher's motion by order dated November 1, 1995. Fletcher now asks this Court to determine whether it was reversible error for the circuit court to give a sudden emergency instruction under the facts of this case, and whether the sudden emergency doctrine remains the law in West Virginia.

II. Standard of Review

At the outset, we note that "[a] trial court ... has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law." Syllabus Point 4, in part, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). "Whether facts are sufficient to justify the delivery of a particular instruction is reviewed by this Court under an abuse of discretion standard." Syllabus Point 12, in part, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994). Upon review, "[i]t will be presumed that a trial court acted correctly in giving or in refusing to give instructions to the jury, unless it appears from the record in the case that the instructions given were prejudicially erroneous or that the instructions refused were correct and should have been given." Syllabus Point 1, State v. Turner, 137 W.Va. 122, 70 S.E.2d 249 (1952). This Court has recognized, however, that "[a]n instruction should not be given when there is no evidence tending to prove the theory upon which the instruction is based." Syllabus Point 4, Hovermale v. Berkeley Springs Moose Lodge No. 1483, 165 W.Va. 689, 271 S.E.2d 335 (1980).

III. DISCUSSION
A.

The aged sudden emergency doctrine was born in 1816 England in the case of Jones v. Boyce, 1 Stark. 493, 171 Eng. Rep. 540 (N.P. 1816).4 In that case, the plaintiff brought an action against a coach proprietor for an injury he suffered after feeling compelled to leap from the coach due to the negligent manner in which the coach was being driven. The court's charge to the jury was, in part, as follows:

To enable the plaintiff to sustain the action, it is not necessary that he should have been thrown off the coach; it is sufficient if he was placed by the misconduct of the defendant in such a situation as obliged him to adopt the alternative of a dangerous leap, or to remain at certain peril; if that position was occasioned by the default of the defendant, the action may be supported. On the other hand, if the plaintiff's act resulted from a rash apprehension of danger, which did not exist, and the injury which he sustained is to be attributed to rashness and imprudence, he is not entitled to recover.... [D]id this circumstance create a necessity for what he did, and did he use proper caution and prudence in extricating himself from the apparently impending peril.

Jones, 171 Eng. Rep. at 541.5

The sudden emergency doctrine was transported to the United States, making its first appearance in the case of Stokes v. Saltonstall, 38 U.S. (13 Pet.) 181, 10 L.Ed. 115 (1839) which also involved a frightened leap from a coach.6 In both Jones and Stokes, "the doctrine was invoked by the plaintiff to show that his conduct did not amount to contributory negligence, and this was true of almost all cases in the infant stages of the doctrine."7

B.

Interestingly, the first West Virginia case found by this Court to discuss the sudden emergency doctrine, Haney v. Pittsburgh, C., C. & St. L. Ry. Co., 38 W.Va. 570, 18 S.E. 748 (1893), overruled by Jackson v. Norfolk & W.R. Co., 43 W.Va. 380, 27 S.E. 278 (1897), concerned a plaintiff's decedent who jumped from the caboose of a construction train in order to avoid the effects of an imminent collision with another train.8 In its discussion of whether the plaintiff's decedent was guilty of contributory negligence, this Court stated The question is, what did self-preservation prompt? Was he to wait until the crash came, or was he to try and escape the shock, the scalding steam, and the flying splinters which are the usual accompaniment of such collisions. It is true that by remaining quiet he might have escaped injury as others did; but what was the natural impulse, and what would the great majority of men have done, however calm may have been their nervous temperament, under the same circumstances? There can be but one answer,—they would have made every effort to escape. Now, what does the law require of a man thus situated? Shearman & Redfield on the Law of Negligence, (volume 1, § 89,) under the heading, "Effect of Mistaken Judgment under Sudden Alarm," states the law as follows: "In judging of the care exercised by the plaintiff, reasonable allowance is always made for the circumstances of the case; and if the plaintiff is suddenly put into peril, without having sufficient time to consider all the circumstances, he is excusable for omitting some precautions, or making an unwise choice, under the disturbing influence, although, if his mind had been...

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