Opinion
July 24, 1973. Not Selected for Publication.
Sheldon, Bayer, McLean & Glasman, Richard C. McLean, Denver, for defendants and third-party plaintiffs-appellees.
Brenman, Sobol & Baum, Melvin Rossman, Denver, for plaintiffs-appellants.
Blunk, Johnson & Allspach, George E. Johnson, Denver, for third-party defendant-appellee.
COYTE, Judge.
Plaintiff brought this action to recover damages sustained in an automobile accident which allegedly occurred as the result of defendant's negligence. At the time of the accident, plaintiff was driving in a westerly direction on the inside lane of the Denver-Boulder turnpike. Although there was conflicting testimony on the precise events preceding the accident, it appears that defendant in his delivery van moved into the inside lane some distance in front of plaintiff, slammed on his brakes, skidded and came to rest against the concrete median barrier. When plaintiff observed the van strike the median, he took evasive action by swerving sharply to the right intending to drive onto the shoulder of the highway. In so doing, he collided with a truck driven by third-party defendant, Suer, who had been following plaintiff and who had likewise changed lanes when the van struck the median wall.
At the conclusion of the evidence, plaintiff moved for a directed verdict. The trial court denied his motion and submitted the case to the jury, which returned a verdict for the defendants. Plaintiff appeals. We affirm.
I.
Plaintiff contends that defendant was guilty of negligence as a matter of law, that the sudden emergency doctrine exonerated him, also as a matter of law, from contributory negligence and that, therefore, the trial court erred in failing to grant his motion for a directed verdict on the issue of liability. We disagree.
The evidence revealed that defendant's van protruded four to six feet into the inside lane which was 13 feet wide. There was a conflict in the evidence as to whether an emergency existed and whether plaintiff could have avoided the accident by evasive action.
The rule with respect to determination of questions of negligence and proximate cause is well established. In Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928, the court said:
'In this state, the issues of negligence and proximate cause are generally to be resolved by the trier of the facts. It is only in the clearest cases, where the facts are undisputed and reasonable minds could draw but one inference from them, that the question of what constitutes reasonable care is ever one of law to be taken from the jury and decided by the court.'
The rule has no less force and validity when plaintiff raises the doctrine of sudden emergency as a defense against alleged contributory negligence. In Davis v. Cline, Colo., 493 P.2d 362, the court explained the nature of the sudden emergency doctrine and the role of the error of fact as follows:
'. . . The rationale of the doctrine is that in an emergency there is no time for cool reflective deliberation during which alternative courses of action might be considered and explored; but rather, the situation demands speedy decision based largely upon the actor's perception of the compelling circumstances. . . .
'In other words, the course of conduct pursued may be deemed to have been reasonable and prudent under the emergency circumstances then existing, absent which the standards of reasonableness and prudence would not have been met. Whether the course of conduct chosen by the party under the circumstances is reasonable and prudent is a question of fact to be determined by the trier of fact, as is the question of whether there is an emergency.'
Under the facts in this case, the court properly submitted the determination of the issue of contributory negligence and the sudden emergency doctrine to the jury under proper instructions.
II.
Plaintiff further argues the court erred by giving jury instructions on contributory negligence in a case involving the sudden emergency doctrine. We disagree.
On sudden emergency, the jury was given Colorado Jury Instructions 9:7:
'A person who, through no fault of his own, is placed in a sudden emergency, is not chargeable with negligence if he exercises that degree of care which a reasonably prudent person would have exercised under the same or similar circumstances.'
If the jury finds that plaintiff acted as a reasonably prudent person under the circumstances then present, they effectively have decided the question of contributory negligence. However, if the jury finds plaintiff acted unreasonably, then the instructions on contributory negligence come into play. Thus, the instructions on contributory negligence were essential and proper. No error was committed.
Judgment affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.