Rodgers v. Carter, 31

• Decision Date: 02 March 1966
• Docket Number: No. 31,31
• Citation: 146 S.E.2d 806,266 N.C. 564
• Parties: Boley RODGERS, Administrator of the Estate of Shirley Faye Rodgers, Deceased, v. James Monroe CARTER and Sophia Beacham Jackson.
• Court: North Carolina Supreme Court

Page 806

146 S.E.2d 806

266 N.C. 564

Boley RODGERS, Administrator of the Estate of Shirley Faye Rodgers, Deceased, v. James Monroe CARTER and Sophia Beacham Jackson.

No. 31.

Supreme Court of North Carolina.

March 2, 1966.

R. L. Coburn, Williamston, for plaintiff.

Rodman & Rodman, Washington, N. C., for defendants.

LAKE, Justice.

Upon the issue of negligence, which the jury answered in favor of the defendants, the trial judge instructed the jury:

'Now, the defendant relies upon what we know in law as the doctrine of sudden emergency and the court instructs you that this sudden emergency is that he was confronted with something out of the ordinary suddenly and the court instructs you that a person confronted with a sudden emergency is not held to the same degree of care as in ordinary circumstances but only to that degree of care which an ordinarily prudent person would use under similar circumstances.

'The standard of conduct required in an emergency, as elsewhere, is that of the prudent person. The Court further instructs you that this principle is not available to one who by his own negligence has brought about or contributed to the emergency. That means in simple language, that a person who creates the emergency or who contributes to the creation of the emergency cannot take advantage of this doctrine of sudden emergency.

'The Court instructs you that one who is required to act in an emergency is not held by the law to the wisest choice of conduct but only to such choice as a person of ordinary care and prudence similarly situated would have made.'

The court then reviewed the contentions of the parties with reference to the existence of a sudden emergency.

The question now to be considered is as to whether the evidence was such as to justify any instruction upon this doctrine of sudden emergency. We conclude that it was not and that the injection of the doctrine into the charge was prejudicial to the plaintiff.

The doctrine of sudden emergency is simply that one confronted with an emergency is not liable for an injury resulting from his acting as a reasonable man might act in such an emergency. If he does so, he is not liable for failure to follow a course which calm, detached reflection at a later date would recognize to have been a wiser choice. As Cardozo, J. said of one acting in such a situation, in Wagner v. International Ry. Co., 232 N.Y. 176, 182, 133 N.E. 437, 438, 19 A.L.R. 1:

"Errors of judgment,' however, would not count against him if they resulted 'from the excitement and confusion of the moment.' [Citations] The reason that was exacted of him was not the reason of the morrow. It was reason fitted and proportioned to the time and the event.'

That one was faced with an emergency before the injury occurred does not, however, necessarily shield him from liability. He must still act, after being confronted with the emergency, as a reasonable person so confronted would then act. The emergency is merely a fact to be taken into account in determining whether he has acted as a reasonable man so situated would have done. The extent to which it will excuse a departure from the care and judgment which would be required under normal circumstances will, therefore, vary with the suddenness with which the emergency developed, the seriousness of the threatened damage and other circumstances calculated to excite and confuse. The doctrine of sudden emergency, moreover, relates solely to the appraisal of conduct occurring after the emergency is observed. An emergency does not necessarily break the chain of causation so as to absolve one from liability for prior negligent conduct.

The rule is well summarized in the American Law Institute's Restatement of the Law of Torts, 2d Ed., § 296, where it is said:

'(1) In determining whether conduct is negligent toward another, the fact that the actor is confronted with a sudden emergency which requires rapid decision is a factor in determining the reasonable character of his choice of action.

'(2) The fact that the actor is not negligent after the emergency has arisen does not preclude his liability for his tortious conduct which has produced the emergency.

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'Where the emergency itself has been created by the actor's own negligence or other tortious conduct, the fact that he has then behaved in a manner entirely reasonable in the light of the situation with which he is confronted does not insulate his liability for his prior conduct. Such liability is not precluded by the fact that he has acted reasonably in the crisis which he has himself brought about. It is not his reasonable conduct in the emergency which makes him liable, but his prior tortious conduct creating the emergency.'

In Brunson v. Gainey, 245 N.C. 152, 95 S.E.2d 514, the trial court charged the jury on the doctrine of sudden emergency in an action for wrongful death of a three year old child killed while running across the road in front of the defendant's car. A new trial was granted, this Court saying through Rodman, J.:

'One cannot, by his negligent conduct, permit an emergency to arise and then excuse himself on the ground that he was called upon to act in an emergency.

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'If the peril suddenly confronting the defendant was due to excessive speed or to his failure to maintain a proper lookout, the fact that care was exercised after the discovery of the peril would not excuse the negligent conduct which was the proximate cause of the injury and damage. The court should so have instructed the jury.'

In Harper & James, the Law of Torts, § 16.11, there is the following statement concerning the doctrine of sudden emergency:

'This rule will be applied even where the actor has put himself in the emergency because of some prior negligence; but in this connection one thing should be noted: the exercise of due care in an emergency will not insulate an actor from liability for the consequences of the negligence that helped to bring the emergency about. Thus even though a motorist driving at excessive speed does everything that could be done to avoid striking the child who darts out into his path, these precautions taken in the emergency (while constituting due care) will not excuse the driver from liability for the excessive speed.'

The defendant's own evidence is that these two little six year old girls were standing for three or four minutes some eight feet from the pavement. Though the road was straight and his vision unobstructed for seven-tenths of a mile, Carter did not see the children until he was approximately 250 feet from them, at which time he observed the child now deceased standing with her back to him. The other child was facing him. He was then driving 55 miles per hour. He did not blow his horn and did not reduce his speed until he saw the child run...