Opinion
Rehearing Denied Feb. 11, 1970.
Page 86
Myrick, Criswell & Branney, Englewood, for plaintiff in error.
Zarlengo, Mott & Carlin, Denver, for defendant in error.
DWYER, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
The parties appear here in the same order as below and will be referred to as plaintiff and defendant.
Plaintiff brought this action against defendant for damages allegedly sustained in an automobile accident involving a rear end collision.
Plaintiff driving south on Broadway Street stopped at a traffic light at the intersection of South Broadway and Chenago in Englewood, Colorado. A Ford automobile was in front of plaintiff and the defendant's automobile was behind plaintiff. The three cars proceeded across the intersection and had traveled about one-quarter of a block south of the intersection when a car entered South Broadway from a private drive on the right side of the street. The driver of the Ford came to a stop. Plaintiff stopped her automobile behind the Ford and defendant's automobile collided with the rear end of plaintiff's car. Plaintiff contended that the defendant was negligent in either following too close, failing to keep a proper lookout, or driving too fast for conditions. The defendant denied any negligence and claimed that the plaintiff came to a sudden stop without signaling. The case was submitted to the jury on the issues of negligence and contributory negligence. The jury returned a verdict for defendant.
As her sole ground for reversal, the plaintiff contends that the trial court committed reversible error in giving the following instruction:
'A party suddenly confronted with an emergency due to no negligence on his part is not guilty of negligence for an error of judgment when practically instantaneous action is required.'
The instruction given is a statement of the 'sudden emergency' doctrine. Plaintiff argues that the only effect of this doctrine is to relieve an actor of the same standard of care to which he would be held in the absence of an emergency and that it is merely a specific application of the 'reasonable man' test. It is suggested that the emergency doctrine does not contain any principle not contained within the general instruction defining negligence and no special instruction on the emergency doctrine should be given. The Colorado Supreme Court has, however, approved giving a proper instruction based on the sudden emergency doctrine where there is evidence that a party has acted under circumstances of emergency not caused by his own negligence. Cudney v. Moore, 163 Colo. 30, 428 P.2d 81 (1967); Stewart v. Stout, 143 Colo. 70, 351 P.2d 847 (1960); Denver-Los Angeles Trucking Co. v. Ward, 114 Colo. 348, 164 P.2d 730 (1945) and Ridley v. Young, 127 Colo. 46, 253 P.2d 433 (1953).
The sudden emergency instruction in the form contained in Colorado Jury Instructions (CJI) is authorized in appropriate cases by Rule R.C.P.Colo. 51.1 adopted September 28, 1967, by the Colorado Supreme Court.
Plaintiff contends that, in light of the evidence in this record, it was error to give any instruction on the sudden emergency doctrine. Plaintiff argues that under the evidence the court should have determined as a matter of law that no emergency existed. The Colorado Supreme Court has held that the existence of an emergency is to be determined by the trier of fact if there is evidence from which it could be reasonably found that an emergency existed.
In Grunsfeld v. Yetter, 100 Colo. 570, 69 P.2d 309 (1937), the defendant's car was stalled on the highway due to wet distributor points when it was struck from the rear. When plaintiff first saw defendant's car, he assumed that it was proceeding at the usual rate of speed. The plaintiff did not realize the impending danger until it was too late to get around the defendant's car because another car was approaching from the opposite direction. The court held that this presented a situation to which the sudden emergency doctrine could apply.
In Stewart v. Stout, Supra, plaintiff and defendant were driving in the same direction. As plaintiff approached the point where the accident occurred, he saw cars ahead having trouble caused by an icy section of the highway and attempted to pull off onto a gravel shoulder. Defendant's truck, while also attempting to turn to the side of the highway, struck plaintiff's car from behind. The Supreme Court held that whether there was a sudden emergency was a question of fact to be determined by the trier of fact and upheld the trial court's decision that the facts presented constituted an emergency.
In Daigle v. Prather, 152 Colo. 115, 380 P.2d 670, the defendant, after experiencing a brake failure, struck the rear of plaintiff's car. Defendant testified 'That it happened too suddenly to veer to the side or to use the emergency brake.' On appeal from a verdict for the defendant, the plaintiff contended that it was error to instruct on emergency. In affirming, the court said:
'* * * we conclude that there was evidence to justify the giving of an instruction that one suddenly confronted with an emergent situation which is 'due to no negligence on his part' is not thereafter to be deemed guilty of negligence for a subsequent error of judgment when practically instantaneous action is required.'
In Cudney v. Moore, Supra, the vehicle in which plaintiff was riding stopped at an intersection and was struck from the rear by defendant's car. Moore's defense to the action was that he experienced a sudden and unforeseeable brake failure due to a mechanical defect in his vehicle.
In affirming a verdict for the defendant, the Supreme Court held that under the facts presented, the trial court properly instructed on sudden emergency. The wording of the instruction quoted by the court in that case is identified to the wording of the instruction in issue here.
Defendant contends that she was confronted with an emergency because plaintiff came to a sudden stop without giving a hand signal and defendant did not see the brake lights flash. Defendant further contends that an emergency was created by another car which suddenly and unexpectedly emerged from a private drive and created a situation of peril for those in the normal line of traffic. Defendant's evidence, although disputed by plaintiff, presented facts from which the jury could have determined that there was an emergency. The trial court properly submitted to the jury the determination of this factual issue.
Plaintiff contends that the instruction as given by the court is incomplete and erroneous in that it fails to require a person placed in a sudden emergency to exercise that degree of care which a reasonably prudent person would have exercised under the same or similar circumstances.
The instruction approved in Colorado Jury Instructions (CJI) contains such a requirement and reads as follows:
'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.' Undoubtedly, the approved instruction is a better statement of the sudden emergency doctrine. However, the instruction given by the court is identical to the one quoted by the Supreme Court without comment as to form in Cudney v. Moore, Supra, and a similar instruction was given in Daigle v. Prather, Supra.
The failure to incorporate the reasonably prudent person test in the sudden emergency instruction is not fatal. It has been repeatedly held by the Colorado Supreme Court that it is not necessary to include all of the law in one instruction and that all of the instructions must be read together. Kirk v. Hines, Colo., 461 P.2d 444, citing Frazier v. Edwards, 117 Colo. 502, 190 P.2d 126 and Blain v. Yockey, 117 Colo. 29, 184 P.2d 1015.
The reasonable man test was embodied here in the instruction on negligence:
'Negligence is a failure to exercise for the protection of others, the care and caution that would be exercised by an ordinarily prudent person under the same circumstances.
'Failure to do what an ordinarily careful and prudent person would have done under all of the circumstances of the case, or the doing of something that an ordinarily prudent person would not have done under all of the circumstances of the case, is negligence.'
The instructions given, when considered together adequately cover the law of the case. Since the reasonable man test is included in the instruction on negligence, the omission of the reasonable man test in the sudden emergency instruction did not constitute error.
Judgment affirmed.
ENOCH and DUFFORD, JJ., concur.