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Harrah v. Washington11/1/1996
ded: "A sudden emergency is an event or a combination of circumstances that calls for immediate action without giving time for the deliberate exercise of judgment." Although the instruction correctly sets forth the sudden emergency doctrine, see Carolina Coach Company v. Starchia, 219 Va. 135, 141, 244 S.E.2d 788, 792 (1978), Washington is not entitled to its benefit under the facts of this case.
For the doctrine to apply, the condition confronting the operator must be an "unexpected happening." Gardner, 250 Va. at 260, 462 S.E.2d at 94. In other words, where a set of circumstances has existed and the party has been exposed to them before, the situation is not "unexpected." Id.
In the present case, Washington was thoroughly familiar with the weather conditions on the mountain at the time, based on both his experience earlier in the morning and his observations as he ascended the mountain just before he stopped his vehicle. Given those conditions, Washington knew, or should have known, that a vehicle might be stopped ahead in his lane of travel. Such an occurrence was foreseeable and not unexpected. See Chodorov, 239 Va. at 531, 391 S.E.2d at 70.
Moreover, Washington was not confronted with a sudden emergency after he reentered his truck and moved it forward a few feet. Then, he had time for the deliberate exercise of judgment.
Finally, the plaintiff contends the trial court's instruction relating to the duties of an operator who stops his vehicle on a highway was incomplete and thus erroneous. We agree.
Code ยง 46.2-888 prohibits a person from stopping a vehicle in such a manner as to impede or render dangerous the use of a highway, "except in the case of an emergency, an accident, or a mechanical breakdown." The statute further provides that in the event of such emergency, accident, or breakdown, the stopped vehicle "shall be moved from the roadway to the shoulder as soon as possible and removed from the shoulder without unnecessary delay."
The trial court charged the jury: "The driver of a vehicle has a duty not to stop his vehicle so as to interfere with traffic on the highway or so as to make the highway dangerous to others who are using it, unless there was an emergency or an accident."
Arguing the instruction was incomplete, the plaintiff correctly says the trial court should have instructed the jury on "Washington's additional duty to move his vehicle off the roadway as soon as possible, even though it was properly stopped for an emergency." The instruction was misleading because it ignored Washington's statutory duty to take further action after he stopped. See Armstrong v. Rose, 170 Va. 190, 202, 196 S.E. 613, 617 (1938). Parenthetically, we observe that our ruling applying the "emergency" provision of this statute, is not inconsistent with our previously expressed view that the sudden emergency doctrine does not apply to Washington.
Consequently, although the trial court correctly decided the first issue, the judgment below will be reversed and vacated because of the court's misdirection of the jury, and the case will be remanded for a new trial on all issues.
Reversed and remanded.
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