Warnke v. Essex

Horney, J., delivered the opinion of the Court. This is an appeal from a judgment for costs entered by the ¹⁸⁶ Circuit Court for Prince George’s County against Dolores G. Warnke (the plaintiff) in favor of Paul B. Essex (the defendant) following the granting of the defendant’s motion for a directed verdict at the close of the evidence offered by the plaintiff on the ground that she had failed to produce sufficient evidence of the defendant’s negligence to entitle her to recover. The plaintiff appealed. This litigation is the outcome of an automobile accident on U. S. Highway No. 1.

This highway has four lanes. There is no median strip between the northbound and southbound traffic lanes. For dainty, we shall refer to the southbound lanes as 1 and 2, and the northbound lanes as 3 and 4. Lanes 1 and 4, the so-called slow lanes, are nearest the curbs.

Lanes 2 and 3, in the middle of the highway, are the so-called fast lanes. The plaintiff was driving north in lane 3. The defendant was driving south in lane 2. Both were proceeding within the speed limit at about 25 m.p.h.

Suddenly, the plaintiff saw the defendant cross the center line of the highway a short distance in front of her. She turned to her right into lane 4, the slow lane, as far to the curb on that side of the highway as she could go, but the defendant’s automobile veered entirely across lane 3, into lane 4, and collided with the automobile of the plaintiff. Eugene R. Friend, a witness for the plaintiff, testified that he was in his automobile traveling in the same direction as the defendant, following him but in a different lane. He stated that another automobile, traveling in lane 1 about a car length ahead of the defendant, suddenly swerved in front of the defendant, and then added: “The first thing I could see, Mr. Essex tried to put on his brakes to stop. * * * I don’t know what happened then.

His car got out of control, I suppose.” The plaintiff contends that the testimony produced by her constituted sufficient evidence of the negligence of the defendant to submit the case to the jury. On the other hand, the defendant insists that the testimony of the disinterested witness shows that he was confronted with a sudden emergency which negatives any theory of negligence. Generally, the operator of an automobile who suddenly finds himself in a position of peril is not required to exercise ¹⁸⁷ the same care as when he has ample time to reflect upon the course of action he should pursue. Burhans v. Burhans, 159 Md. 370 , 150 A. 795 (1930).

However, if the operator is not actually in a position of sudden peril, or, if the peril arises because of his own negligence, then the emergency rule is not applicable. 5 Am. Jur., Automobiles, § 171; 60 C. J. S., Motor Vehicles, § 257. The relevant inquiry, then, is whether an ordinarily prudent person would have acted in the same manner as the defendant did in-this case. The mere fact that a person finds himself in a predicament or emergency does not automatically relieve him of the obligation to use ordinary care.

The amount of care might change, of course, but the degree or standard of ordinary care is always the same, i. e., the care that would be used by an ordinarily prudent person under the same circumstances, the emergency itself always being considered and weighed as one of the circumstances. See 2 Harper and James, Law of Torts (1956), § 16.11, and Prosser, Torts (1955), § 32. Whether the operator of an automobile was confronted with an emergency, and whether he acted negligently under the circumstances, are generally questions for the jury. 10B Blashfield, Automobile Law and Practice (1957), § 6648. In the case now before us it clearly cannot be said that the existence of an emergency was undisputed.

Although there was evidence that another automobile swerved suddenly in front of the defendant, there was also evidence that the defendant’s automobile got out of control. At the close of the plaintiff’s case, no evidence had been introduced as to the speed of the automobile which swerved in front of the defendant. There was also no evidence as to whether the defendant could have avoided a collision by promptly and effectively applying his brakes. What is more important, there was no evidence to explain why the defendant lost control so as to