Frisby v. Agerton Logging, Inc.

Jerry D. FRISBY v. AGERTON LOGGING, INC. and
Colvin Reed Agerton

95-816                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 19, 1996


1.   Jury -- use of sudden emergency instruction -- instruction
     inapplicable if any evidence of negligence on the part of the
     person seeking the instruction. -- In order to justify the use
     of the sudden emergency instruction, the evidence must show
     that the driver was in a stressful situation which required a
     quick decision on the possible courses of conduct; that person
     must have been aware of the danger, perceived the emergency,
     and acted in accordance with the stress caused by the danger;
     when there is any evidence of negligence on the part of the
     party seeking to invoke the instruction, AMI 614 is
     inapplicable; when an emergency arises wholly or partially
     from the negligence of the person who seeks to invoke the
     sudden emergency doctrine, AMI 614 has no application and
     should not be delivered to the jury. 

2.   Jury -- use of sudden emergency instruction inappropriate when
     there are two parties to the action, each of which proves some
     fault on the part of the other -- sudden emergency instruction
     improperly given. -- The sudden emergency instruction is not
     appropriate when there are two parties to the action, each of
     which proves some fault on the part of the other; where there
     was testimony from appellant that the appellee was in the
     wrong lane, the instruction should not have been given. 

3.   Negligence -- trial court must assess whether any proof of
     negligence exists on the part of the party requesting the
     instruction -- trial court erred in giving the sudden
     emergency instruction. -- The trial court must assess whether
     any proof of negligence on the part of the party requesting
     the instruction exists, if so, the sudden emergency
     instruction is inappropriate; the giving of an erroneous
     instruction is presumptively prejudicial; because the trial
     court erred in giving the sudden emergency instruction, the
     case was remanded for a new trial.


     Appeal from Union Circuit court; David Guthrie, Judge;
reversed and remanded.
     Lane, Muse, Arman & Pullen, by:  Donald C. Pullen, for
appellant.
     Compton, Prewett, Thomas & Hickey, P.A., by:  Robert C.
Compton, for appellees.

     Robert L. Brown, Justice.     Associate Justice Robert L. Brown
February 19, 1996  *ADVREP8*






JERRY D. FRISBY,
                    APPELLANT,

V.

AGERTON LOGGING, INC. AND
COLVIN REED AGERTON,
                    APPELLEES,

95-816




APPEAL FROM THE UNION COUNTY
CIRCUIT COURT,
NO. CIV 92-75,
HON. DAVID F. GUTHRIE, JUDGE,




REVERSED AND REMANDED.





     Appellant Jerry D. Frisby sued appellee Agerton Logging, Inc.,
for negligence in connection with an automobile accident which
involved Frisby's Toyota automobile and Agerton Logging's truck. 
Agerton Logging counterclaimed against Frisby and contended that it
was Frisby who was negligent.  The jury returned a verdict in favor
of Agerton Logging on Frisby's complaint and in favor of Frisby on
Agerton Logging's counterclaim.  Frisby now appeals on several
grounds.  Agerton Logging has not cross-appealed.  We agree with
Frisby on one point -- that it was reversible error for the trial
court to instruct the jury on sudden emergency (AMI 614).  We,
therefore, reverse the judgment and remand the matter for a new
trial.
     The vehicular accident in question occurred on Saturday,
January 5, 1991, at approximately 1:30 p.m. on the Old Hillsboro
Road, which is a narrow gravel road with a clay base, in Union
County.  At the ensuing jury trial on January 16 and 17, 1995, the
following physical evidence came to light.  Jerry Thomas, the local
assistant fire chief, testified that he arrived at the scene of the
accident and observed a small compact car off on one side of the
road and a loaded log truck lying on its side on the other side of
the road.  The fuel tank on the left side of the log truck had been
grazed as had the dual wheels on the left side behind the cab of
the truck.  The car had been struck on the left front side.  The
driver of the log truck was uninjured, but Thomas testified that
Frisby was pinned inside the car and had to be cut out.  Thomas
observed debris and skid marks in the roadway.  Thomas testified
that the condition of the road was such that cars travelling in
both directions would use the same pathway of ruts in the middle of
the road.
     Dale Mack, a resident in the area, also saw the vehicles off
in the ditches.  He further observed debris in the roadway and
confirmed that the tracks in the road indicated that the traffic
merged into one lane in the course of the turn where the accident
occurred.  Mack testified that there is a bank next to the road
which impedes a driver's vision around the curve.  He admitted that
there were no skid marks to indicate that Frisby had turned to
avoid hitting the truck head on.  He further stated that the truck
had to have turned a little bit; otherwise, the car would have hit
the front of the truck rather than the side.  Mack testified that
it was a dangerous, blind curve but that there was room to pass.
     Frisby testified that he had been working as a rural mail
carrier since 1987 and was delivering mail at the time of the
accident.  His mail route covered eighty-seven miles.  He described
how the wreck happened:
          Well, I was driving down the Old Hillsboro Road,
     north on Old Hillsboro Road, and I came to this curve and
     I was on the inside of the curve going around and all at
     once just appeared right before me and in my lane of
     traffic was Mr. Agerton and just like that we were hit.
Later on in his testimony, Frisby reiterated that the truck was in
his tracks on his side of the road.  He could not tell if he or
Agerton took evasive action.  The inside of the curve was to
Frisby's right.  Frisby testified that the car caved in on his left
arm and leg and that he was unable to get out of the vehicle.
     Frisby admitted that he carried mail in the front seat of his
car during his route, but he stated that he did not look through
the mail while driving due to the danger it would cause.  Normally,
he would operate the car while sitting in the middle, he said, and
he would move back to the driver's seat when there were longer
distances between stops.  He admitted that there was only one set
of tracks in the road even though the road was wide enough for two
cars to pass.  He also admitted that at the time of the wreck, he
and Agerton were both in those tracks, which, Frisby said, were on
his side of the road.  Frisby testified to injuries to both arms
and his left leg and to cuts to his face and lost teeth.  His
injuries required surgery, and his medical expenses exceeded
$63,000.
     Colvin Reed "Billy" Agerton, who was driving the Agerton
Logging truck at the time of the accident, testified that his son,
Gary Agerton, runs the Agerton Logging Company.  Billy Agerton, who
was sixty-seven at time of trial, described how the wreck happened:
          Well, as I was coming up -- approaching the hill on
     the incline in the curve, I begin to move the log truck
     over to my side of the road.  I was driving right down
     the middle of it ... following the tracks in the road. 
     It was about half on my side and half on his side.
                              ....
     As I pulled over to the right and got about halfway at
     the incline I seen Dewayne [Frisby] coming.
                              ....
     At the best of my knowledge when I first seen him I might
     of been doing 40.
Agerton testified that he began to pull to the right because he
could not see around the turn.  He stated that he was approximately
150 feet away from Frisby when he first saw him and that he
(Agerton) was on his side of the road.  Frisby, he stated, was in
the center of the road.  Agerton testified that after he saw
Frisby, he moved to the right as far as he could go.  He testified
that he saw Frisby looking to his right seat rather than at the
road:
     The minute he [Frisby] looked up and seen me he locked --
     he locked all four brakes up and pulled the wheel as far
     to the right as he could and he come into a slide across
     the road.  As I looked back down to my left, the last
     time I looked back to see him, he was -- I thought he was
     going under the trailer but he hit the back of the diesel
     tank and the back dual.
The collision occurred at the crown of the hill.  Agerton testified
that his front right wheel was already in the ditch at the time of
the collision.  The load shifted when the rear dual went off in the
ditch, and the truck turned on its side.  Agerton testified that
the point of impact was in the middle of the road or slightly on
his side.
     John Bentley, an accident reconstructionist, testified on
behalf of Agerton Logging.  Bentley stated that he heard the
testimony which had been presented on the second day of the trial. 
He opined, based on what he heard and other records examined, that
Agerton "perceived and reacted early to avoid the collision."  It
was also Bentley's opinion that Frisby did not have an early
perception or reaction to the oncoming vehicle.  Because of the
distance the truck traveled after the collision -- about 30 feet --
Bentley concluded that the tractor-trailer had reduced its speed
considerably by time of impact.  The 30-foot estimate he used came
from the Motor Vehicle Traffic Accident Report filed by the deputy
sheriff.  Frisby objected to the reference to the 30-foot
measurement and contended that this violated a pretrial order. 
Counsel for Agerton proposed that the trial court admonish the
jury, but Frisby declined the offer of an admonishment.
     At the request of Agerton Logging and over the objection of
Frisby, the jury was read AMI 614, the sudden emergency
instruction.  The jury rendered verdicts on the complaint and
counterclaim and, in effect, found neither Agerton Logging nor
Frisby negligent on the respective claims.
     Frisby raises three points on appeal, but it is the third
point that we believe has merit.  He contends that the trial court
erred in giving the sudden emergency instruction, AMI 614.  That
instruction reads:
          A person who is suddenly and unexpectedly confronted
     with a danger to himself or others not caused by his own
     negligence is not required to use the same judgment that
     is required of him in calmer and more deliberate moments. 
     He is required to use only the care that a reasonably
     careful person would use in the same situation.
AMI Civil 3rd 614 (1989).  Frisby objected to the instruction
because it had not been proven that Agerton Logging was free from
negligence.  In fact, Frisby testified that Agerton Logging was
negligent in following the ruts in the middle of the road.  At
another point in his testimony, Frisby stated that the Agerton
Logging truck was in his lane of traffic at the time of the
collision.
     In order to justify the use of the sudden emergency
instruction, the evidence must show that the driver was in a
stressful situation which required a quick decision on the possible
courses of conduct.  That person must have been aware of the
danger, perceived the emergency, and acted in accordance with the
stress caused by the danger.  Diemer v. Dischler, 313 Ark. 154,
158-59, 852 S.W.2d 793, 795-796 (1993).  When there is any evidence
of negligence on the part of the party seeking to invoke the
instruction, AMI 614 is inapplicable.  Druckenmiller v. Cluff, 316
Ark. 517, 873 S.W.2d 526 (1994).  Stated another way, when an
emergency arises wholly or partially from the negligence of the
person who seeks to invoke the sudden emergency doctrine, AMI 614
has no application and should not be delivered to the jury.  Id;
Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995)
(instruction proper where third-party driver encountered collision
caused by others and did not in any way create the emergency
himself).
     The Druckenmiller v. Cluff holding decides the instant case. 
The sudden emergency instruction is not appropriate when there are
two parties to the action, each of which proves some fault on the
part of the other.  Such was the situation in the case at hand
because there was testimony from Frisby that Billy Agerton was in
the wrong lane.  Hence, the instruction should not have been given. 
It added nothing to the comparative fault analysis and only
injected confusion into complex proceedings.
     Agerton Logging argues that the trial court was required to
consider the evidence in the light most favorable to it because it
requested the sudden emergency instruction.  This is not correct. 
The trial court must assess whether any proof of negligence on the
part of the party requesting the instruction exists.  If so, the
instruction is inappropriate.  The giving of an erroneous
instruction is presumptively prejudicial.  Skinner v. R.J. Griffin
& Co., 313 Ark. 430, 855 S.W.2d 913 (1993).  Because of the error
in giving the sudden emergency instruction, we remand the case for
a new trial.
     Reversed and remanded.
     Glaze, J., concurs.*ADVREP8A*





JERRY D. FRISBY,
                    APPELLANT,

V.

AGERTON LOGGING, INC. AND
COLVIN REED AGERTON,
                    APPELLEES.



95-816

Opinion Delivered:  2-19-96







CONCURRING OPINION




                  TOM GLAZE, Associate Justice

     I concur.  The majority opinion says it best -- "[T]he
instruction (AMI 614) should not have been given.  It added nothing
to the comparative fault analysis and only injected confusion into
complex proceedings."  AMI 614 should be abolished, and as long as
this court countenances the use of this instruction, confusion will
continue to prevail.  See Druckenmiller v. Cluff, 316 Ark. 517,
527, 873 S.W.2d 526, 532 (1994) (Glaze, J., concurring).