Davis v. Booth

29 N.C. App. 742 | N.C. Ct. App. | 1976

HEDRICK, Judge.

By her first three assignments of error, plaintiff contends the court erred in its instruction to the jury with respect to the “doctrine of sudden emergency.” In her brief, plaintiff states:

“Plaintiff contends that the trial judge gave erroneous instructions to the jury on the law of who had the burden of proof in establishing the affirmative defense of the sudden emergency doctrine, by placing this burden on the plaintiff rather than the defendant.”

The sudden emergency rule is a mere application of the rule of the prudent man. It raises no separate issue with reference to the burden of proof. Foy v. Bremson, 286 N.C. 108, 209 S.E. 2d 439 (1974). We have carefully considered the exceptions upon which plaintiff bases the contention set out above and find them to be without merit. The court’s instructions to the jury with respect to the burden of proof as to the issue of defendant’s negligence were entirely correct.

Next plaintiff contends the court erred in instructing the jury with respect to the “doctrine of sudden emergency” since all of the evidence showed that defendant contributed to the creation of the sudden emergency “by placing the black youth in the back seat of her car.” In Bremson, supra, at 120, Chief Justice Bobbitt wrote:

“Instructions with reference to the rule applicable when a motorist is confronted by a sudden emergency should be given whenever the evidence discloses a factual situation appropriate for such instructions.”

The evidence in the present case was clearly sufficient to raise an inference that the defendant was confronted by a “sudden emergency” when she looked into the mirror and saw the youth sliding across the seat and coming toward her with his hands, and that her reaction was not negligence when viewed in light of the rule of the prudent man. It was for the jury, not the court, to say whether defendant had contributed to the creation of the sudden emergency. We hold the court correctly, fairly and adequately declared and explained the law arising on the evidence given in the case with respect to the defendant’s negligence. These assignments of error are overruled.

Plaintiff’s other assignments of error are formal in nature and raise no new question. We hold the plaintiff had a fair trial free from prejudicial error.

No error.

Chief Justice Brock and Judge Clark concur.