Mapes v. OpperMapes v. Opper
On Oсtober 20, 1980, Robert J. Opper, an appellant herein, was an employee of Char don Auto Parts, Inc., an appеllant herein, and was on his way, in a van, to Garfield Heights to make a pick-up when he was involved in an accident on Wilson Mills Rоad with an automobile being driven by David Mapes, ap-pellee herein.
On August 24, 1981, appellee filed a complaint for money damages against appellants alleging Opper negligently caused the accident on Wilson Mills Road. Apрellants filed a joint answer which set forth various defenses, including the affirmative defense of sudden emergency.
The matter proceeded to trial by jury. At the close of all the evidence, appellee moved for a directed verdiсt as to liability. The court granted appellee’s motion stating that Opper was negligent
per se
in going left of center in violation of
Appellants have appealed the judgment оf the trial court and have filed the following assignment of error:
“The trial court erred to the prejudice of defendants-аppellants in granting plaintiff-appellee’s motion for directed verdict made at the close of appеllants-defendants’ case and refusing to instruct the jury on the issue of ‘sudden emergency.’ ”
The assigned error is without merit.
“Motion for directed verdict. <<* * *
“(4) When granted on the evidence. When a mоtion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could cоme to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.”
Appellants argue that oil on the roadway аt the scene of the accident presented Opper with a sudden emergency which
There is no factual dispute thаt Opper, at the time of the accident, went left of center into the oncoming path of appellee in violation of
Appellants contend that Opper’s failure to comply with said statutes was excused because he was confronted with a “sudden emergency” in that the rоad, at the scene of the accident, was covered with oil, and that when he applied his brakes, he skidded over the center line into appellee’s path. Appellants argue such circumstances presented an issue of fact for the jury.
The general rule is that one who in a sudden emergency acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence.
Scott
v.
Marshall
(1951),
“In a negligenсe action, the so-called ‘emergency doctrine’ applies only where there was a sudden and unexpeсted occurrence of a transitory nature which demanded immediate action without time for reflection or delibеration and does not comprehend a static condition which lasted over a period of time.”
Miller
v.
McAllister
(1959),
In order to avоid liability for injuries resulting from his failure to comply with a safety statute regulating the operation of a motor vehicle on thе public highways, a motorist must show that something over which he had no control, or an emergency not of his own making, made it impossible for him to comply with the statute. A self-created emergency, one arising from his own conduct or from circumstancеs under his control, cannot serve as an excuse.
Oechsle
v.
Hart, supra; Peters
v.
B. & F. Transfer Co.
(1966),
In the instant cause, the evidence at the end of appellеe’s case-in-chief, was to the effect that, approximately one half mile from the scene of the accident, Opper became concerned because the rear of his van began to “shimmy” and “slide.” He reduced his spеed and, upon reaching the top of the hill just before the accident scene and after tapping his brakes, the van began to slide down the hill and travel left of the yellow center line. The testimony of Sgt. Steven Raubenolt of the State Highway Pаtrol was to the effect that, in responding to a call about the accident, within fifteen or twenty minutes, he proceeded over the same path traveled by Opper a short time earlier and his cruiser “fishtailed” sideways on the highway at aрproximately the same place Opper’s van had shimmied and slid. Raubenolt testified there was a multi-colored rainbow type film on the road from that point to the scene of the accident.
The trial court properly found that the evidence did not indicate that Opper was required to violate
Having found the court did not err in directing a verdict as to liability, it was not error for the court to have refused to instruct the jury on the defense of “sudden emergency.”
The judgment of the trial court is affirmed.
Judgment affirmed.