Taylor v. Todd

• Decision Date: 31 August 1982
• Docket Number: No. 1-282A32,1-282A32
• Citation: 439 N.E.2d 190
• Parties: Carolyn L. TAYLOR and Donald J. Taylor, Plaintiffs-Appellants, v. Margaret M. TODD, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 190

439 N.E.2d 190

Carolyn L. TAYLOR and Donald J. Taylor, Plaintiffs-Appellants, v. Margaret M. TODD, Defendant-Appellee.

No. 1-282A32.

Court of Appeals of Indiana,

First District.

Aug. 31, 1982.

Kent H. Musser, Rynearson, Laudig & Musser, Indianapolis, for plaintiffs-appellants.

Richard L. Fairchild, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for defendant-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

Plaintiffs-appellants Carolyn L. Taylor (Taylor) and Donald J. Taylor brought this action in the Boone Circuit Court for damages sustained when Taylor was struck by a car driven by the defendant-appellee, Margaret M. Todd (Todd). The jury returned a verdict for Todd, and Taylor argues that the trial court erred in instructing the jury on the sudden emergency doctrine.

We affirm.

STATEMENT OF THE FACTS

The facts most favorable to the judgment are as follows. The collision occurred on March 10, 1978, at 5:49 a. m. in the 7000 block of East 21st Street in Indianapolis. This was shortly after the notorious blizzard of '78, and accumulations of ice and snow remained on or near the traveled portions of many city streets. On East 21st Street near the scene of the collision, two lanes were open for traffic, one eastbound and one westbound. Ice and snow were piled on the sides of the road to the outer edges of both lanes, and some snow and ice encroached into the eastbound lane where Todd was driving. At the time of the collision it was still dark. The temperature was below freezing and Todd testified that there was "a slight fog or ice crystals in the air."

Just before the accident, Taylor had been to a restaurant for a cup of coffee; she left the restaurant and walked toward her place of employment, which was one block east on 21st Street. Todd was driving east on 21st Street at 15 to 20 m. p. h. when she saw Taylor walking on the right side of the road one or two car lengths ahead of her. At trial Todd said she was surprised to see "I remember I felt a need to be cautious because of the on-coming traffic and the narrowness of the encroachment of the ice and snow, that I had to, you know, maintain, not deviate, because of running into them or the snow. You just had to, you know, just be careful, and it was the darkness, had my lights on. All I can remember is pretty soon I saw ahead of me someone walking on the right side of the road. That person had white pants on and what I thought to be a brown leather like coat. I distinctly saw the white pants and the back of the white coat, or the brown coat, and they were just walking along the side of the road. It seemed to me there was no problem. I wasn't going very fast, and I was passing that person. I remember beginning passing that person okay. The front of the car was past that person when I heard an awful thump on the side of my car. As soon as I heard that thump, I stopped as soon as I could. I didn't jam on the brakes because of the condition [of the road] ... And then the police came, and the policeman asked me what had happened, and I told him I didn't know because I sure didn't know, and I still don't know...."

anyone walking there in the morning darkness and the unfavorable weather conditions. In her direct testimony during the plaintiff's case, she described the ensuing collision as follows.

Todd later elaborated on the moment of the collision:

"Now, when I saw her, when my headlights picked her up, she was on the side of the road. Now, I don't know what was--she was down street level. In other words she wasn't walking on top of a big pile of snow, but I don't know what was under her feet.... All I know is she was walking, allowing space between me and the car, and I had enough room to pass her with no problem. She was walking straight, I was driving straight, there seemed to be no problem at all, as I was passing her and I was passing--in the process of passing her, when I heard this noise."

Todd estimated that when she began to pass Taylor, Taylor was walking approximately three feet away from the car. The following exchange occurred later in the direct examination.

"Q. But you didn't see any danger in coming within 3 feet of a pedestrian, given the nature of the side of the road at that time?

A. No. She seemed to have no trouble walking at the time I was watching her, aware of her walking in front of me."

Taylor testified that due to injuries she received in the collision, she could not remember much about how it occurred. On cross examination she recalled stating in her deposition that she was stepping down with her left foot from a higher portion of ice and snow when she was struck by Todd's car. She stated that she did not see Todd's car before it struck her.

Todd and Taylor were the only witnesses to the collision and the only witnesses testifying at the trial.

ISSUE

Whether the trial court committed reversible error in instructing the jury on the sudden emergency doctrine.

DISCUSSION AND DECISION

The sudden emergency instruction given by the trial court is as follows:

"You are instructed that when a person is confronted with a sudden emergency, not of his own making without sufficient time to determine with certainty the best course to pursue, he is not held to the same accuracy of judgment as would be required of him if he had time for deliberation. Accordingly, if he exercises such care as an ordinarily prudent person would exercise when confronted by a like emergency, he is not liable for an injury which resulted from his conduct, even though another course of conduct would have been more judicious or safer, or might even have avoided the accident.

Therefore, if you find from a fair preponderance of the evidence in this case that the defendant was faced or confronted with a sudden emergency not of her own doing, and that thereafter she pursued a course of conduct that an ordinarily reasonable and prudent person would pursue or follow when confronted with the same emergency, then the defendant would not be liable to the plaintiffs, even though you believe that another course of action or conduct would have been more judicious, safer or might have even avoided the accident."

The trial court has a duty to give an instruction that is supported by the evidence and that correctly informs the jury about a party's theory of the case. Baker v. Mason, (1968) 253 Ind. 348, 242 N.E.2d 513; Kiger v. Arco Auto Carriers, Inc. (1969) 144 Ind.App. 239, 245 N.E.2d 677. In the case at bar, Taylor argues only that the sudden emergency instruction was not supported by the evidence. If there was any evidence or inference supporting the instruction, there was no error in giving it. Kiger, supra.

In order to invoke the sudden emergency doctrine a party must prove the following facts:

"(1) That the appearance of danger or peril was so imminent that he had no time for deliberation. Hedgecock v. Orlosky (1942), supra, 220 Ind. 390, 397, 44 N.E.2d 93;

(2) That the situation relied upon to excuse any failure to exercise legal care was not created by his (appellant's) own negligence. Dunbar v. Demaree (1936), 102 Ind.App. 585, 601, 2 N.E.2d 1003; Redd v. Indianapolis Railways (1951), supra, 121 Ind.App. 472, 97 N.E.2d 501;

(3) That his conduct under the circumstances was such as the law requires of an ordinarily prudent man under like or similar circumstances. Gamble v. Lewis (1949), supra, 227 Ind. 455, 85 N.E.2d 629; Zoludow v. Keeshin Motor Express (1941), 109 Ind.App. 575, 34 N.E.2d 980."

Taylor v. Fitzpatrick, (1956) 235 Ind. 238, 247, 132 N.E.2d 919; Cartwright v. Harris, (1980) Ind.App., 400 N.E.2d 1192; Wells v. Gibson Coal Company, (1976) 170 Ind.App. 445, 352 N.E.2d 838. In addition, the doctrine presumes that the actor perceives his situation as an emergency. In the instant case the evidence did not support the instruction because Todd testified that she saw no danger in passing Taylor, and nothing in her testimony indicates that she perceived an emergency. Without the perception of sudden danger, there is no impairment of judgment and no need for the sudden emergency instruction.

In Dimmick v. Follis, (1953) 123 Ind.App. 701, 111 N.E.2d 486, this court explained the requirement that the actor perceive a perilous situation.

"[A]t no time was the appellee conscious of peril and no conduct on her part was prompted by a sudden realization of danger. The yardstick for measuring the quantum of care exercised by one confronted by sudden peril can be used only in connection with what he does or fails to do after discovering the danger to which he has been suddenly subjected. The whole doctrine of sudden peril has to do with the judgment one exercises in an emergency and if one is unaware of such emergency and exercises no judgment there is no room for the application of the doctrine."

Id., at 708-709, 111 N.E.2d 486.

Baker, supra, is...