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Smull v. Cooper9/13/2000
Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.
Plaintiffs Phyllis Smull and Kenneth Smull appeal a district court judgment entry, following a jury trial, that found in favor of defendant Wesley E. Cooper in their personal injury action against him. REVERSED AND REMANDED FOR A NEW TRIAL.
Plaintiffs Phyllis and Kenneth Smull appeal a district court judgment entry, following a jury trial, that denied their claim against defendant Wesley E. Cooper for damages as a result of an automobile accident. They contend the trial court erred (1) by giving a jury instruction on the sudden emergency doctrine when there is no substantial evidence in the record to support it; (2) in failing to grant their motion for a new trial as a result of an irregularity in the proceedings which prevented them from having a fair trial by submitting to the jury an additional instruction which was not read defining sudden emergency, and (3) in instructing the jury on sole proximate cause when there was no substantial evidence to support it. We reverse and remand for a new trial.
On May 29, 1998, at approximately 3:30 p.m., there was an automobile accident between a 1993 Mercury Tracer being operated by Kenneth Smull and in which his wife, Phyllis Smull, was a passenger and a 1982 Ford F-150 pickup truck being operated by Wesley Cooper. The accident happened on Brady Street in Davenport, Iowa, which is a four-lane street. Both parties were driving in the second lane from the right side of the street. The traffic at that time was heavy, and the speed limit is forty-five miles per hour but, at the time of the accident, both parties were driving slower than that. It was a clear day and the pavement was dry.
Approximately two car lengths ahead of the Smull vehicle was an H & W semi-truck in the same lane they were in. Approximately one and one-half car lengths ahead, Kenneth noticed the brake lights on the truck came on and the truck stopped and he brought his motor vehicle to a stop. The truck stopped because of traffic that had stopped in front of it. Kenneth and Phyllis speculated on why the truck stopped, and then they were hit from the rear by the motor vehicle being driven by Wesley Cooper. At the impact, Kenneth turned his motor vehicle to the left and they came to a stop at the left of the truck, near the rear of the truck.
Cooper had been following the Smull vehicle and noticed traffic was heavy and other motor vehicles on Brady Street were switching lanes. Shortly before the accident, the motor vehicle that was behind him went around him and he glanced at his rearview mirror and when he looked up, he saw the Smull vehicle had stopped. He attempted to stop, however, he struck the Smull vehicle.
Cooper, in his answer to the plaintiffs' petition, asserted the affirmative defense of sudden emergency. The court instructed on that proposition in Instruction No. 22 and Instruction No. 23.
During the hearing on the instructions, prior to submitting the matter to the jury, it was determined the definition of sudden emergency was contained in Instruction No. 22 and Instruction No. 23. Because of this, it was decided Instruction No. 23 would not be used.
When the trial judge finished reading Instruction No. 22 to the jury, he noticed Instruction No. 23 had been included in the instructions and he did not read it. Instruction No. 23, however, was included in the instructions that were given to the jury.
During the deliberations, the jury sent the following question to the trial judge:
We agree under instruction #15, numbers 1 B & C. We agree this negligence was a proximate cause of
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