*1 served in our sentenc remand a new
ing procedure.
Affirmed. John Wesley Bernice WILSON and
Mary Wilson, Appellants, v. Interviewing, E. Alaska H. SIBERT, d/b/a Appellee. No. 2165. Supreme Court of Alaska.
May 22, 1975.
(Alaska 1974) ;
State,
1971) ;
State,
Hixon v.
508 P.
L. Ames for lants. Merdes, Sherry, Schaible, Staley
Alan G. DeLisio, appellee. Anchorage, &
OPINION RABINOWITZ, J., C.
Before BOOCHEVER, CONNOR JJ. RABINOWITZ, Chief Justice. appeal This from verdict appellee origin has its favor accident. automobile Ap- largely are uncontested. The facts pellee stopped in his automobile was Sibert of a bank in line the drive-in window Appellant Mary Anchorage. Bernice Wil- immedi- stationary in her vehicle son was According appellee, to ately behind Sibert. be- car or five feet Mrs. was four Wilson’s his; appel- testified that hind Mrs. Wilson a half car about two and lee’s car was had appellee After lengths of hers. ahead noticed period line for a he been in short abruptly start back- car in front of him immediately shifted ing toward him. He collid- his car into reverse and backed up, appellants’ front of car ing with the appel- a fender on push force to sufficient tire, rendering it immo- lants’ into the car horn, or Appellee did sound his bile. around, in the vehi- turn look or look to anyone in order if cle’s mirror to ascertain up. Ap- prior backing him behind pellee he testified that made “re- a “sheer reaction” and maneuver as appeared to flex” what in order avoid impending him collision with to be he car in front of him. He admitted know the car did not if he him struck him front of would have gave con- hadn’t and that he no moved According thought scious back. him, busy car getting he was “too . . seem to have gear . didn’t than the car anything get time do other moving.” He became aware that someone only upon colliding him was behind appellants’ vehicle. testified that she was in the
Mrs.
Standards
Wilson
for determination of a
when she
process
writing
out
check
motion for directed verdict are well estab
appellee’s car
suddenly glanced up to see
lished. The trial court is to view the evi
immediately blew
backing toward her. She
dence in its strongest
favor of the
stop until
appellee
party against
her horn but
did not
whom the motion
made
collided with her.
and is then to determine whether
fair-
*3
jurors
minded
could differ as to the con
standing immedi-
The vehicle that was
clusions of fact
might
drawn
from
line,
appellee in the
and
ately ahead of
presented
the evidence which was
as to
vehicle, de-
appellee’s
backed toward
which
questions.4
those
If
the evidence so
parted the
of the accident.
scene
viewed
diversity
opin
leaves room for
among
ion
persons,
reasonable
appel-
then the
Appellants brought suit based on
question should
jury
be left for the
for Mrs.
and
negligence
lee’s
to recover
Wil-
motion for
consequent
directed verdict
her husband’s
denied.5 On
injuries
son’s
and
appeal
apply
we
Appellee
the same standards.
of services and consortium.
loss
interposed
negligence
own
and
denied his
Appellants argue that their
for a
motions
party,
negligence of
third
the defense of
directed
erroneously
verdict were
denied
namely
him
the driver ahead of
whose
because
indicated
“total ab-
backing up had set off the chain of events
by appellee
sence
care”
and therefore
at issue here.1
conclusively
negligence,
established his
appellee’s
because
backing
action
his ve-
case,
again
their
at
At the close of
hicle without
sounding
or
his horn
evidence, appellants
of the
moved
close
negligence per
constituted
se.
question
verdict on the
for a directed
Appellants contend that
the evidence
appellee’s negligence.
motions were
These
appellee
shows
acted with a “total absence”
court,
superior
con
denied
which
of care because of his admitted failure to
liability
matter of law had
cluded
as a
look backwards or in his
mirror
that the
not been established and
issue
backing.
sound his horn before
No rea-
properly
jury
negligence was
one for
contend,
jury,
sonable
could find in
suf
appellee’s testimony had raised a
since
any
appellee
facts
these
evidence that
exer-
upon which a defense
ficient factual basis
any
cised
care whatsoever
toward Mrs.
predicated.
of sudden
could be
Wilson, and that
therefore
negligence
Ultimately the trial court submitted
was conclusively established.
jury
separate
case to the
with two
instruc
ap
negligence,
the issue of
over
Appellants’ position, however, fails
pellants’ objections
defining negli
to take
rapidity
into account
—one
gence
setting
general2
and the other
person
which a
in an
situation
forth the sudden
doctrine.3 may be
Appellee’s testimony
forced to act.
Appellants
appeal
in this
assert that the su made reference to factual circumstances
perior
denying
court erred in
their motions
which could be viewed
the trial court as
liability
directed verdict on
issue
constituting
situation. The
giving
and committed further error
requires
weigh
law
actions
instruction.
person charged
of a
Appellee’s
complaint
third-party
1967).
(Alaska
was subse-
432 P.2d
See also Mertz
quently
apparently
dismissed,
Corp.,
Covington
in-
due to his
v. J. M.
1Q37 to the could differ as minds Reasonable of a the conduct the standard against at- split-second decision to propriety of circum- person in the same reasonable impending col- apparent tempt to avoid in- circumstances those When stances. shifting into reverse by quickly lision emergency, presence of an clude pause up. That he failed conduct is finding that justify a fact actions, to ascertain of his warn others clearly unrea- acceptable which would safely, are fail- in fact back that he could This emergency. no there were if sonable weighed in clearly must be ings (Sec- adopted by the Restatement view instan- apparent to act almost of the need provides (1965), which ond) of Torts not, appel- taneously. as 296: Section will deter- argue, this court lants conduct is determining whether (1) In persons in as a matter of law mine the fact toward negligent another, by ap- faced those circumstances with a sudden the actor confronted *4 those duty of care” to pellee owe “no rapid requires decision emergency which them, the determina- around but whether determining the reasonable is a factor duty that nature and extent of tion of the action. his choice of character of jury.7 hold properly left to the We is one point out that to this section The comments opinion difference that a reasonable of applicable this is rule ac- of as to the course could exist unexpected by by presented it is created the where circumstances tion under the by operation or the of a natural force therefore conclude this record. We per- a third wrongful appellee’s prop- or of negligence innocent act the issue of re- does not resolution. erly jury son .... the law the submitted to reason- of the actor more than it is quire situa- that an The evidence under the circum- expect of him able appellee start- existed when tion have Therefore, him. stances which surround ap- dispositive of up car ed his is the jury determining court and the requiring a di- pellants’ theory for second must propriety of the actor’s conduct Appellants’ conten- rected verdict as well. in a he is take account the fact that into per was established negligence se tion speedy position must make a where he of appellee’s alleged violation is based on alternative courses decision between 02.485, part: provided in which 13 AAC that, therefore, he has no time action and may not back A driver of a vehicle (a) ef- as to the an accurate forecast to make the movement can the vehicle unless fact his The mere fect of choice. interfering safety and without made with not make is unfortunate does choice the traffic. which though it one improper it even is regu traffic Assuming, arguendo, that this had he not have made the actor should actions, appellee’s applicable lation is time to consider all had sufficient analysis applicability then the likely to follow action.6 effects per rule to the negligence se this court’s rule, jury accord with this appropri at bar becomes facts of case to evaluate the reasonableness was bound Baxter, In Ferrell v. 484 P.2d ate. appellee’s of the evi actions adopted (Alaska 1971), we the rule set him to be in an emer dence which showed of Torts (Second) forth in Restatement §§ took these actions. gency situation when he 286, 288A, This rule al (1965).8 and 288B (Second) may adopt 6. Restatement of Torts Com- § standard court (b) (a) (1965). require- ments at 64^65 man the conduct of reasonable legislative an ments of a enactment Patch, purpose regulation See Ferris v. 119 Vt. 126 A.2d is administrative whose exclusively part found to be or (a) protect persons a class of which (1965) invaded, 8. Restatement of Torts § interest includes the one whose provides: why the adopt regulation certain reason should be con- lows the trial court to rele prohibit strued excuse. legislative vant enactments administra any Nor of conduct was there regulations tive as the standard man, “emergency” appellee’s arose violation of because of a reasonable so that appli- own regulation misconduct. We conclude enactment or will constitute However, per cation in case of se important negligence this per se. rule 288A, in force Alaska leaves a factual limitation on the rule is found § jury for determination provides: re- emergency excuse, garding existence of an (1) of a legislative An excused violation 288A(2)(d), for violation supra, regula- enactment or an administrative Thus, superior the regulation. court tion is not denying appellants’ did err in motions regulation Unless enactment for a directed verdict. permit excuse, construed not to Appellants also it contend that was re- its violation excused when superior versible for the error court specific submit to the instruction on is confronted (d) [the actor] emergency. They do contend emergency not due to his own miscon- that the instruction was an er- duct .... law, roneous statement of but do con- Appellee’s testimony clearly made improperly prejudicial tend that it had an *5 reference to factual circumstances which jury. superior effect on the The court’s appropriate could be as viewed “emer general negligence10 instruction on suffi- gency” Study this of rule. 13 AAC ciently jury informed the of the 02.485(a) the and statute under which apply, contend, this appellants standard to and regulation promulgated9 was reveals no the separate additional and sudden emer- (b) protect particular (2) to the interest which of an unexcused violation enact- invaded, regulation adopted is ment or which is not so (c) against protect bearing that interest the be relevant evidence on the resulted, negligent hind of harm which has issue of conduct. (d) protect against that interest the 28.05.030(a)(1). 9. AS particular hazard from which the harm provided: results. No. Instruction (Second) (1965) complaint Restatement of Torts 288A§ In in her this action and provides: plaintiff testimony Mary her Bernice Wil- (1) legislative An injured excused violation a son claims that she was as a result regulation or an negligence enactment administrative is of the defendant. All the questions negligence not negli- or absence of (2) regulation your gence the or Unless is enactment are for determination. permit excuse, necessary connection, construed not such its In this it is to know by negligence. Negligence is violation excused when what is meant (a) ordinary care; is, the violation is reasonable because of means the want of incapacity; ordinarily the actor’s the want of such care as an rea- (b) prudent person he neither knows nor should know of sonable and would exercise compliance; the circumstances, so, occasion under like mining in deter- (c) diligence he is unable after reasonable or not Defendant whether the was comply; you negligent question, or care to in on occasion (d) he is confronted not must determine whether did or did he not misconduct; ordinary doing due to his own exercise care in he what was (e) compliance greater attempting immediately would involve a risk to do at accident; of harm to the actor or to others. time of the before the is to (1965) say, Restatement of Torts 288B he not whether did or did exercise such
provides:
ordinarily
prudent
as
care
reasonable and
legislative
person
The unexcused
of a
violation
should exercise under like circum-
regulation
enactment or an administrative
stances.
nary
If he failed to exercise such ordi-
adopted by
defining
care,
negligent;
which is
as
court
if
was
but
he did
ordinary care,
the standard of
a
conduct of
reasonable
exercise
then he was
negligence
man,
negligent.
in itself.
unneces-
ternative courses so that he
unfairly and
was not in a
instruction
gency
situation,
aspect
true
particular
concluded
We
emphasized
sarily
trial judge
evidence.
[wjould
justified
have been
in [setting
parties that
by both
conceded
It is
jury’s
only
aside the
if the evi-
verdict]
emergency situa
in
negligence
the test
men,
dence was such that fair
minded
applied
to be
as
is the same
judgment,
exercise
reasonable
required
that what
other cases:
could not differ
on
de-
ordinary
man of
reasonable
conduct of a
negligence,
only
fendant’s
but could
Thus,
the circumstances.12
prudence under
come to the
that he
conclusion
was not
negligence
general
instruction
when a
negligent.
(378
828-29).
P.2d at
rule,
separate instruc
a
properly states this
opinion
Snipes
Our
can
read
as an
applies
the rule still
emphasizing that
tion
implied acceptance
propriety
of the
of the
repe
a
is in
sense
situations
sudden
instruction.
determine
titious. We must now
a sudden emer
giving
in this
case the
Meyst
Service,
In
v. East Fifth Avenue
as
prejudicial error
instruction was
gency
Inc.,
1965),
ap-
430 (Alaska
emergen
separate sudden
well. Whether
pellant alleged
judge’s
error in the trial
re-
prejudicial
well
cy
as
instruction would be
give
separate
fusal
ordinarily a matter which
repetitious is
as
gen-
instruction.
held that because the
We
discretion,
the trial court’s
is committed to
giv-
eral
instruction which was
which we will not disturb
and one
adequately
jury
en
informed
of their
disc
showing of an abuse of
absence of a
appellant’s
duty
judge the
behavior
retion.13
at the
the circumstances
existed
time,
specific emergency
instruction was
been
emergency doctrine has
The sudden
necessary
it
give
and so refusal to
prior decisions.
in several of our
a factor
Essentially the same situation
not error.
March,
Snipes
cannot park Viewing him. the evidence behind giving them.14 favor, strongest Mrs. in the in his Although a number jurisdic parked approximately four or five Wilson prejudicial it is have concluded that feet his vehicle. he noticed behind When emergency in give an to refuse to error up, the car in front of him start to back he warrant,15 it facts struction when the immediately up, backed without accepted it predominantly seems to be sounding view rear window or a trial court to prejudicial error for stop to might horn. The horn have served “superfluous” emergency in give a sudden the car in front of him fur- from have Emergency instructions struction. Looking ther. in the rear view mirror they incorrectly struck down where been would have revealed Mrs. vehicle Wilson’s the law or there is insufficient state where resulting probable prevention of the col- support inference of an evidence any In he did lision. he admitted event, situation,16 appellants but have know whether car in front him no cited to us case which would him have struck if he hadn’t moved. exist and a instruc did correct tion was nonetheless struck down as agree majority While I prejudicial.17 review the record general application Our of the giv doctrine, this case reveals no indication that the I do not that in the believe emer- ing improper involved, of the instruction gency here req- Sibert acted with ly jury. influenced the we Accordingly, uisite The emergency care. doctrine as judgment.18 affirm the adopted by the Restatement specifies: Torts 296 (1965) § Affirmed.
ERWIN,
determining
conduct
J., not
participating.
another,
negligent
toward
the fact
BOOCHEVER,
(dissenting).
the actor is confronted
Justice
requires rapid
emergency which
decision
parked
was
at a drive-in
Sibert
window
in determining
factor
the reasonable
bank,
place
of a
have
where
should
legal duty
with the defendant’s
“inconsistent”
14.
P.2d
270.
484
conduct,
anticipate
types of
certain
See,
g.,
Cal.App.
Durfee,
e.
v.
88
Stickel
inappropriate
the facts
hence
(1948) ; Emery
402,
Los
2d
199
16
v.
Friend,
And in
360 Ill.
case.
Minnis v.
Ry. Co.,
Cal.App.2d 455,
Angeles
143
(1935),
N.E. 191
it was held
(1943) ;
Corp.
Ins.
Keal
Car Gen.
&
give
refuse
instruction
Driveway Co.,
(5th
1943) ;
such anticipated. De- reasonably have been forcefully and emergency, if he spite the brakes, he will be continuously applies his negligently.1 Even to have driven found instinctively, less he acted more or though TRUNNEL, Appellant, Al is not a reason- application brakes prepared choice. Drivers must able Alaska, Appellee. STATE of types to the extent emergencies certain No. precautionary steps take Supreme Court of Alaska. injury and others. to themselves to avoid May 27, 1975. very least, It seems to me that at his horn or should have honked Sibert mirror. This is
looked his rear view type emergency as usual when highway is proceeding driver on a con- person, animal or other vehi- fronted suddenly directly path in the appearing cle situation, of his In that vehicle. must make instantaneous decision whether to proceed into the or swerve to ei- obstacle side. Either be reason-
ther decision circumstances, though able even available, time if more were the driver better could determine which decision to make.
Here, however, manner of exercising the decision under no circumstances can be charge
considered reasonable. Sibert with knowledge likely able that a car was to be behind him. In the admitted emer him,
gency confronting he had the choice staying still hoping other car him, wouldn’t strike staying still and blow ing his horn backing to alert the vehicle or problem I himself. see no exercising the latter course of action as *8 choice,
a reasonable do but I not think that Rogers Dubiel, 1. See Backing 297 373 295 at a vehicle without or sound- involving application ing warning constitutes See driving ice, although brakes while Freitas, Cal.App. not re- 459, Brandes 830, 2 ferring (1931). Embry doctrine. v. Reserve Natural Co., La.App. Gas 124 So. Restatement not, however, of Torts do cases involve 296(1) quoted (of page dissent) supra. doctrine.