Howell v. Cahoon

372 S.E.2d 363, 236 Va. 3, 5 Va. Law Rep. 441, 1988 Va. LEXIS 120
CourtSupreme Court of Virginia
DecidedSeptember 23, 1988
DocketRecord No. 850949
StatusPublished
Cited by4 cases

This text of 372 S.E.2d 363 (Howell v. Cahoon) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howell v. Cahoon, 372 S.E.2d 363, 236 Va. 3, 5 Va. Law Rep. 441, 1988 Va. LEXIS 120 (Va. 1988).

Opinions

CARRICO, C.J.,

delivered the opinion of the Court.

In this wrongful death case, the sole assignment of error concerning the question of liability involves the trial court’s action in granting a defense instruction on sudden emergency. Finding the court’s action erroneous, we will reverse.

On November 9, 1984, Edward Allen Howell was killed while riding as a passenger in a pickup truck operated by Robin A. Cahoon. On January 2, 1985, Howell’s mother, acting as administratrix of his estate, filed ■ a motion for judgment against Cahoon seeking compensatory and punitive damages. On August 27, 1985, a jury trial resulted in a verdict in favor of Cahoon. The trial court entered judgment on the verdict, and the administratrix has appealed.

At the time in question, Cahoon was operating his pickup truck in a southerly direction on Princess Anne Road through an area south of Pungo in the City of Virginia Beach. In this area, Prin[5]*5cess Anne is a winding, two-lane road, with one lane for northbound traffic and one for southbound. The posted speed limit was 55 miles per hour. Cahoon was familiar with the road, having driven it “around a hundred” times.

At a point south of Creeds Park, Cahoon got behind a car operated by Timothy J. DePew. Cahoon followed DePew through a series of curves before reaching “a straightaway.” As “[s]oon as the passing zone opened up,” Cahoon pulled into the left lane, but when he accelerated, DePew also accelerated. Then, when Cahoon slowed down, DePew also slowed down.

Deciding DePew was finally “going to let [him] pass,” Cahoon accelerated again, mindful of a curve “three or four hundred yards down on the right.” When Cahoon reached the end of the “legal passing zone,” he looked to his right to make sure he could “pull back in [the] other lane” but saw that DePew was “still right beside [him].” Cahoon “looked back up,” saw a pickup truck coming around the curve from the opposite direction, and immediately turned to his left off the side of the road. The oncoming pickup truck, operated by Richard Twiford, turned to its right off the same side of the road, and the two vehicles collided head-on. The passenger, Howell, was pronounced dead at the scene.

On appeal, Howell’s administratrix contends that the trial court erred in granting an instruction on sudden emergency because the evidence showed Cahoon was not without fault in creating the emergency upon which his defense was based. On the other hand, Cahoon contends that the court’s action was entirely proper.

Quoting from Carolina Coach Company v. Starchia, 219 Va. 135, 244 S.E.2d 788 (1978), Cahoon argues that “when the evidence is in conflict or when diverse inferences may be properly drawn from the evidence, it is for the jury to say (1) whether defendant was confronted with an emergency; (2) whether any such emergency was created by defendant’s own negligence; and (3) whether, after creation of the emergency, defendant acted as an ordinarily prudent person under the circumstances.” Id. at 141, 244 S.E.2d at 792. Starchia, however, is inapposite.

Rather, we think the apposite decision is Thibodeau v. Vandermark, 234 Va. 15, 360 S.E.2d 171 (1987), which was decided after the present case was disposed of below. In Thibodeau, we said that, “as with questions of negligence, contributory negligence, and proximate cause generally, if reasonable persons could not disagree on the facts and the inferences which may be drawn [6]*6therefrom, the question whether a party’s negligence creates a sudden emergency becomes a matter for decision by the court.” Id. at 18, 360 S.E.2d at 173. We said further that “[n]egligence which will disentitle a party to an instruction on sudden emergency need not be the sole cause of the emergency.” Id.

There are no conflicts in the operative facts in this case, and the evidence does not permit the drawing of diverse inferences. From undisputed testimony, including Cahoon’s own testimony, it appears without question that the “legal passing zone” extended “two hundred yards or so, maybe more,” and that from “the point [where] the illegal passing zone began to the point where the impact occurred” was another 420 feet. Cahoon admitted he pulled out to pass DePew “[a]s soon as the passing zone opened up.” Hence, Cahoon had at least 1,020 feet, or more than the length of three football fields, in which to either complete his passing of DePew or to apply his brakes and fall in behind the DePew vehicle.

Yet, incredibly, Cahoon took neither action. He insisted throughout his testimony that his speed never exceeded 50 miles per hour during the whole time his pickup truck remained in the left lane, and, if this was so, it is obvious that DePew’s speed did not exceed the same figure. Cahoon failed to explain, however, why he did not increase his speed to the legal limit of 55 in order to pass DePew, a simple action that might well have averted the tragic consequences which ensued. Cahoon did try to explain why he never applied his brakes during the course of his trip down the left side of the road, but the explanation consisted of the absurd assertion that he “never had the opportunity to apply them.”

Cahoon stresses the point, however, that a motorist confronted with a sudden emergency is not guilty of negligence if he makes such a choice to avoid an accident as would be made by a person of ordinary prudence under similar circumstances, even though the choice may not be the wisest one. The emergency he confronted, Cahoon says, was created by DePew’s action in blocking his return to the right side of the road. Hence, Cahoon maintains, he cannot be held guilty of negligence because he chose to continue in the left lane and ultimately to run off the left side of the road rather than apply his brakes and pull in behind the DePew vehicle. The latter option was one he could have taken, Cahoon admits, but he insists the option he chose was one a person of ordinary prudence would also have chosen.

[7]*7The difficulty with this argument is that it misconceives what constitutes the emergency in this case. The only emergency that ever existed in a legal sense arose when Twiford rounded the curve in the lane of travel occupied by Cahoon. But before this emergency arose, Cahoon had already failed in his duty to complete his passing of DePew, or to apply his brakes and pull in behind the DePew vehicle, while still within the “legal passing zone.” Instead, Cahoon chose to stay in the left lane beyond the passing zone and to proceed down the wrong side of the road approaching a known curve, conduct which clearly constitutes negligence.

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Bluebook (online)
372 S.E.2d 363, 236 Va. 3, 5 Va. Law Rep. 441, 1988 Va. LEXIS 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howell-v-cahoon-va-1988.