Lane v. Brown , 138 Or. App. 34 ( 1995 )

ARMSTRONG, J.

Plaintiffs sought damages from defendant for injuries they sustained when the car in which they were traveling was struck by defendant’s pickup truck. They appeal from a judgment entered on a jury verdict for defendant and assign error to the trial court’s decision to give Uniform Civil Jury Instruction 20.08, which is an instruction about a person's response to an emergency. We affirm.

Because the jury found in favor of defendant, we recite the facts in the light most favorable to him. On November 15,1991, defendant was driving west on Highway 26 near Mount Hood. Defendant had driven approximately 200 miles before the accident. The weather was clear, visibility was good, and the roads were diy. The tires on defendant’s pickup were almost new, studded snow tires. He had the pickup in 2-wheel drive, because the owner’s manual recommended against driving the pickup in 4-wheel drive on dry pavement.

Defendant’s speed did not exceed 50 miles per hour, in a 55-mile-per-hour zone. As defendant approached a place where the road curved to the right, he slowed to 45 miles per hour. He explained that, on a prior occasion, his brother had hit a deer, and he was especially watchful in wooded areas in case a deer ran out onto the road. Suddenly, the rear of defendant’s pickup skidded to the right. Defendant tried to correct the skid by letting up on the accelerator, turning the steering wheel in the direction of the skid and keeping his foot off the brake pedal. Defendant was unable to regain control of the pickup. It shot to the left, slid across the highway and collided with plaintiffs’ car.

An eyewitness, who had been driving behind defendant, stopped his pickup and placed flares in the road to warn other motorists of the accident. He testified that the road was slick and icy at the spot where defendant’s pickup began skidding. He stated that the road had been dry and clear up to that point. An ambulance driver who drove to the accident testified that he had approached the scene from the east, the same direction from which defendant had been driving, and that he had encountered no adverse road conditions in the 15 miles that he had driven to the accident.

At trial, defendant requested that the court give UCJI 20.08, the “emergency” instruction, which provides:

“People who are suddenly placed in a position of peril through no negligence of their own, and who are compelled to act without opportunity for reflection, are not negligent if they make such a choice as a reasonably careful person placed in such a position might make, even though they do not make the wisest choice.”

Plaintiffs objected, claiming that the evidence did not support giving the instruction. The court gave the instruction. The jury found that defendant was not negligent and returned a verdict in his favor.

On appeal, plaintiffs argue that the court erred in giving the emergency instruction, because the instruction should not be given in an ordinary automobile accident case. It is true that the emergency instruction should be avoided “and that rarely, if ever, will a failure to give the instruction constitute reversible error.” Jones v. Mitchell Bros., 266 Or 513, 526, 511 P2d 347 (1973); see also, e.g., Swanson v. Hale, 273 Or 138, 140, 539 P2d 1073 (1975); Rambo v. McCulloch, 90 Or App 392, 395, 752 P2d 347 (1988). Under appropriate circumstances, however, it is not error to give the instruction. Rambo, 90 Or App at 395. We review to determine whether there was sufficient evidence to support a finding of an emergency. Id.

Plaintiffs argue that evidence showed that defendant was not taking reasonable precautions, because he had not checked weather reports and did not have his pickup in 4-wheel drive. Plaintiffs appear to contend that defendant’s negligence contributed to the peril. Thus, according to plaintiffs, defendant was not entitled to have the court give UCJI 20.08.

Other evidence, however, supported the trial court’s decision to give the instruction. The patch of ice that caused defendant’s pickup to skid appears to have been isolated. Testimony was consistent that the road was otherwise dry and that the weather had been clear. Defendant had driven approximately 200 miles before the accident and had encountered no other patches of ice. Additionally, there was evidence that, before the accident, defendant was driving carefully, under the posted speed limit, and was on the lookout for danger.

The fact that the evidence might support a finding that defendant’s negligence contributed to his peril does not mean that it was error to give the emergency instruction. The instruction states that it applies when people are “suddenly placed in a position of peril through no negligence of their own.” On the record in this case, the jury could find that defendant’s peril was not caused by any negligence on his part. Because the evidence supports a finding that defendant was not negligent in causing the peril, it was not error to give the instruction.

Plaintiffs also argue that the instruction was inapplicable because defendant had no opportunity for reflection or choice once the pickup began skidding. Thus, argue plaintiffs, defendant could not have “[made] such a choice as a reasonably careful person placed in such a position might make,” because he had no choice to make. See Scott v. Iverson, 120 Or App 538, 540-42, 853 P2d 302, rev den 317 Or 486 (1993) (when defendant has no courses of action between which to choose, the emergency instruction is inapplicable).

The evidence in this case indicates, however, that defendant made a conscious choice to react to the skid as he did. As mentioned above, defendant testified that he reacted as he had been taught in driver’s education by steering into the skid and keeping his foot off the brake. Defendant could have steered the car in another direction, or he could have hit the brakes, or both. The evidence permitted the inference that defendant was presented with a choice of reactions, and it was for the jury to determine whether defendant’s choice was “such a choice as a reasonably careful person placed in such a position might make.” In the light of the evidence presented, we cannot say that the court erred in giving the emergency instruction.

Affirmed.