In that case, a two and one-half year old plaintiff had been struck by the defendant's automobile, and, as in the case at bar, the defendant testified that she was not aware that the child was in the street until she heard a "thump" on the automobile. In Bernardy v. O.K. Furniture and Rug Company (Okla. 1963), 385 P.2d 909, the Supreme Court of Oklahoma also held that the giving of an unwarranted instruction on "sudden emergency" was not reversible error. "Plaintiff contends the trial court erred in instructing the jury on sudden emergency.

Among other things, he says that the proof was undisputed that Mrs. Hank was negligent by her talking to her passenger with her attention being diverted, and by otherwise not keeping a proper lookout and control of her car, so that she was not entitled to the sudden emergency instruction. Appellant Long relies on Bernardy v. O. K. Furniture and Rug Co., 385 P.2d 909 (Okl.), and Graves v. Harrington, 177 Okl. 448, 60 P.2d 622. The Court's instruction on sudden emergency in substance was that where a person finds himself confronted with a sudden emergency which was not brought about by his own negligence, such person has a legal right to do what it appears that he should do, and that so long as he acts as a reasonable and prudent person as others would have done under similar circumstances to avoid injury, he will not be deemed negligent although it might thereafter appear that some other course of action would have been safer.

They cite cases in which appellate courts of other jurisdictions have upheld determinations by trial courts that drivers of trailing vehicles were not negligent. See Mallonee v. Finch, 413 P.2d 159 (Alaska 1966); Reed v. Stretten, 69 Mich. App. 519, 245 N.W.2d 117 (1976); Tibbetts v. Nyberg, 276 Minn. 431, 150 N.W.2d 687 (1967); Bernardy v. O.K. Furniture Rug Co., 385 P.2d 909 (Okl. 1963); Peterson v. Sapp, 385 P.2d 498 (Okl. 1963). In our view, these cases are inapposite.

And it has sanctioned recitation of the "defense" even where it decided the evidence failed to justify it. Bernardy v. O.K. Furniture Rug Co., Okla., 385 P.2d 909 (1963). We hold the instructions given in this case did not result in a miscarriage of justice.