206 S.E.2d 325 | N.C. Ct. App. | 1974
Patricia Weaver LAWSON
v.
Vickie Paulette WALKER and Roger Dale Walker.
Court of Appeals of North Carolina.
*326 Hamrick & Hamrick by J. Nat Hamrick, Rutherfordton, for plaintiff appellant.
Hamrick & Bowen by James M. Bowen, Rutherfordton, for defendants appellees.
CAMPBELL, Judge.
The plaintiff assigns as error the following portion of the charge by the trial court:
"Now, in this case, the defendant contends that she was confronted with a sudden emergency. Now, I instruct you that if a person through no negligence on her part is suddenly or unexpectedly confronted with peril arising from either the actual presence or the appearance of imminent danger to herself, danger to herself or to others is not required to use the same judgment that is required when there is more time to decide what to do. Her duty is to exercise only that care which a reasonably, careful and prudent person would exercise in the same situation. If at that moment her course and manner of action might have been followed by such a person under the same conditions, then she does all the law requires of her. Although in the light of after events it appears that some different action would have been better and safer. So the plaintiff's contention in this case which the defendant denies is that even though she might have not kept which would be ordinarily a reasonable lookout or kept her car under proper control or done her best to keep her car on the right-hand side of the road that she was confronted with sudden emergency and that her infant son caused some disturbance in the car. You will recall exactly the details of it, and *327 that was sudden emergency. So that she could not be held quite as high a standard so far as staying on the right-hand side of the road and keeping her car under control or keeping a proper lookout. But I do want to instruct you there's no change in the law of negligence. The law as far as negligence is concerned says that a person is negligent if they do something that a reasonably, careful and prudent person would not have done or failed to do something which a reasonably, careful and prudent person would have done. And the `Sudden Emergency Doctrine' just means what a reasonably, careful and prudent person would have done when confronted with a sudden emergency, as the defendant contends she was in in this case. So I instruct you if you are satisfied by the greater weight of the evidence that the defendant was confronted with a sudden emergency, then, you would consider that as to whether she conducted herself as a reasonably, careful and prudent person would have done."
The plaintiff contends that under Rule 51 of North Carolina Rules of Civil Procedure the above charge is generally an insufficient explanation of the doctrine of sudden emergency and particularly an insufficient explanation of the requirement that defendant must not cause the alleged emergency by his own negligence. Rule 51 requires that the trial court in its charge explain the law as it applies to the evidence of the case. The source or cause of the alleged sudden emergency is a vital issue in any consideration of the doctrine of sudden emergency. The trial court made only one reference, and that reference was parenthetical, to the requirement that the defendant, to be able to take advantage of the sudden emergency doctrine, must not bring on the emergency by his own negligence. The clear inference from the charge is that the trial court felt that the fall of the baby did in fact cause a sudden emergency and that said emergency was not brought on by the negligence of the defendants. It is the duty of the trial court in a case allegedly involving a sudden emergency to not only instruct that a lesser standard of care is applied in an emergency situation, but also the trial court must instruct that the jury must find that in fact a sudden emergency did exist and that the jury must further find that the emergency was in fact not brought on by the negligence of the defendants. The charge by the trial court was insufficient and we grant a new trial. Rodgers v. Thompson, 256 N.C. 265, 123 S.E.2d 785 (1962). See also Forga v. West, 260 N.C. 182, 132 S.E.2d 357 (1963); Johnson v. Simmons, 10 N.C.App. 113, 177 S.E.2d 721 (1970), cert. denied, 277 N.C. 726, 178 S.E.2d 832 (1971); Hoke v. Greyhound Corp., 227 N. C. 412, 42 S.E.2d 593 (1947); Annotation, "Instructions On Sudden Emergency In Motor Vehicle Cases", 80 A.L.R. 2d 5 (1961).
New trial.
BROCK, C.J., and HEDRICK, J., concur.
