BARBARA SMITH APPELLANT v. COY TURNER JR AND MILLING COMPANY INC APPELLEES

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Court of Appeals of Kentucky.

BARBARA SMITH APPELLANT v. COY TURNER, JR. AND M & W MILLING COMPANY, INC. APPELLEES

NO. 2011–CA–001525–MR

Decided: May 31, 2013

BEFORE:  CAPERTON, DIXON, AND TAYLOR, JUDGES. BRIEFS FOR APPELLANT:  Sara Beth Gregory Thomas E. Carroll Monticello, Kentucky BRIEF FOR APPELLEES:  John W. Walters Melissa M. Thompson Lexington, Kentucky

NOT TO BE PUBLISHED

OPINIONREVERSING AND REMANDING

Barbara Smith filed suit against Coy Turner, Jr. and M & W Milling Company, Inc., after the grain truck driven by Turner collided with the vehicle driven by Smith.   Smith now appeals the jury verdict returned in favor of Turner and M & W. After a thorough review of the parties' arguments, the record, and the applicable law, we agree with Smith that there were reversible errors;  accordingly, we reverse and remand this matter for a new trial.

The facts of this appeal were testified to at a multiple-day jury trial.   On February 5, 2008, Smith was on Highway 80 when she heard a loud pop and almost immediately a grain truck travelling toward her veered into her lane.   The truck was driven by Turner and owned by M & W. The sound Smith heard which preceded the accident occurred when the inner part of the rim on the front driver's side of the truck broke into two pieces and crashed to the roadway.   Turner lost control of the truck and veered into Smith.   Smith was severely injured by this accident.   The experts of accident reconstruction agreed that the impact occurred 1.1 seconds after the rim failed.   Smith's expert Double testified that the rim failed because the inside portion, which is concealed by the tire, sustained a significant amount of “metal loss” through exposure to the elements.   Before the rim was placed on the truck it was cleaned up, which M & W asserts would have made the rim look “good”.   M & W denied having any knowledge of the faulty rim or the cleaning thereof. Double

The grain truck involved in the accident was a 1984 model truck acquired by M & W in 1993.   Mark Meyer was an owner of M & W at the time of the accident and agreed both in his deposition and at trial that M & W was responsible for the maintenance and upkeep of the truck and that it was M & W's responsibility to put a safe truck on the road.   Meyer acknowledged that M & W did not keep daily inspection records or records of its inspector qualifications. Double Meyer testified about his reliance on a DOT inspection report by Dieseltech, which was admitted over Smith's objection.   This inspection report was completed eight months prior to the accident.   At that time, Meyers was not alerted to any problems with the truck.   Three months before the accident, M & W hired Hancock Tire Center to replace a tube on the rim that ultimately failed.   The employee who replaced the tube testified that he inspected the rim and found no corrosion on the rim and returned the rim to service.

At trial it was established that the truck in the accident was registered showing a lower gross vehicle weight rating than was indicated on the placard installed in the truck.   If the truck had been registered with the indicated gross vehicle weight rating, a driver would have been required to have a commercial driver's license (“CDL”).  Turner did not have a CDL. Rick Stansifer explained that CDL drivers are typically more skilled than the average driver because they have additional training;  they must also pass testing that relates to inspections and recordkeeping.   Stansifer opined that a qualified and well-trained driver should be able to manage a blowout and maintain the vehicle in his own lane of travel, which Turner was unable to do.

At the close of proof, both parties moved for directed verdicts on various grounds, which the trial court denied.   The case was given to the jury, with a verdict returned in favor of the Appellees.   Smith moved for a judgment notwithstanding the verdict, which was denied.   This appeal followed.

On appeal, Smith presents seven alleged errors and arguments with which the Appellees disagree, namely, (1) the trial court erred in admitting an inspection report that was not sufficiently authenticated or reliable and did not fall within an exception to the hearsay rule;  (2) the court erred in admitting irrelevant and prejudicial photographs of other M & W trucks;  (3) the court erred in failing to grant Smith's motions for directed verdict or judgment notwithstanding the verdict based on the violation of Federal Motor Carrier Safety Regulations and the admission by Mark Meyer;  (4) the court erroneously limited Smith's cross-examination of defense expert, Ken Agent;  (5) the court erred in permitting Agent to testify to the effects of Smith's alleged failure to use her seat belt without proper qualifications or foundation for that testimony;  (6) the court erred in failing to give the jury instructions tendered by Smith;  and (7) the court erred in giving the jury a “sudden emergency” instruction.   With these arguments in mind we turn to the first issue on appeal, the admission of the untrustworthy inspection report.   Smith first

argues that the trial court erred in admitting an inspection report that was not sufficiently authenticated or reliable and did not fall within an exception to the hearsay rule.   We note that our standard of review of evidentiary rulings is for abuse of discretion.  “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”  Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky.2000) citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

Smith argues that the trial court erred in admitting the inspection report that was not sufficiently authenticated or reliable and did not fall within an exception to the hearsay rule.   The Appellees rely on KRE 803(6) (the business records hearsay exception) and KRE 902(11) (self-authentication of business records) to support their assertion that the trial court did not err in the admission of the DOT inspection report completed by Dieseltech.

Of import KRE 803(6) states:

(6) Records of regularly conducted activity.   A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.   The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(A) Foundation exemptions.   A custodian or other qualified witness, as required above, is unnecessary when the evidence offered under this provision consists of medical charts or records of a hospital that has elected to proceed under the provisions of KRS 422.300 to 422.330, business records which satisfy the requirements of KRE 902(11), or some other record which is subject to a statutory exemption from normal foundation requirements.

(B) Opinion. No evidence in the form of an opinion is admissible under this paragraph unless such opinion would be admissible under Article VII of these rules if the person whose opinion is recorded were to testify to the opinion directly.

KRE 803(6)(emphasis added).

Similarly, KRE 902(11) requires an examination of the trustworthiness of the business record:

(11) Business records.

(A) Unless the sources of information or other circumstances indicate lack of trustworthiness, the original or a duplicate of a record of regularly conducted activity within the scope of KRE 803(6) or KRE 803(7), which the custodian thereof certifies:

(i) Was made, at or near the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with knowledge of those matters;

(ii) Is kept in the course of the regularly conducted activity;  and

(iii) Was made by the regularly conducted activity as a regular practice.

KRE 902(11)(emphasis added).

After our review of the record we agree with Smith that the record prepared by Dieseltech was untrustworthy.   First, instead of listing the license plate number or the VIN number, the inspector checked the “other” box and listed it as truck # 3. Double Second, the section concerning the motor carrier operator and address are left blank, and the fleet unit number section is blank as well.   Third, and last, the document is unsigned.   Combined, the missing pieces of the form render the document wholly untrustworthy;  Double as such, it was error for the trial court to admit the document, necessitating reversal and a remand for a new trial. Double We shall now briefly address Smith's remaining arguments in light of our reversal and remand for a new trial.

Second, Smith argues the court erred in admitting irrelevant and prejudicial photographs of other M & W trucks.   In support thereof, Smith argues that the photos were taken well after the accident, were not of the same truck, and were of trucks more well-maintained and newer than the truck in question.   The Appellees argue that the photographs were admitted to show that M & W kept their fleet well-maintained to directly contradict Smith's assertions that M & W did not maintain its trucks, i.e., its fleet;  thus, Smith opened the door to the photographs introduction.   At issue is whether the photographs were (1) relevant and (2) whether they should have been excluded under the balancing test of KRE 403.

Kentucky Rules of Evidence (KRE) 402 provides that, with some exceptions, all relevant evidence is admissible.   That all evidence must be relevant in order to be admissible is perhaps the most fundamental rule of evidence.   See KRE 402;  see also Robert G. Lawson, The Kentucky Evidence Law Handbook, § 2.00 (4th ed.   2003) (“The first critical determination to be made concerning the admissibility of any item of evidence is its relevance;  no other principle or concept is of any significance in the absence of a positive determination on this issue.”).  KRE 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

Relevant evidence may, nevertheless, be inadmissible “if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”  KRE 403.   As previously noted, we review a trial court's determination of an evidentiary issue for an abuse of discretion.   See Love v. Commonwealth, 55 S.W.3d 816, 822 (Ky.2001) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).

We agree with Smith that the photographs were admitted in error. Double By admitting photographs of different trucks, the probative value thereof was substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury.   Thus, the photographs should have been excluded and the failure to do so resulted in reversible error.

We now turn to the third argument raised by Smith, that the court erred in failing to grant Smith's motions for directed verdict or judgment notwithstanding the verdict (JNOV) based on the violation of Federal Motor Carrier Safety Regulations and the admission by Mark Meyer.

The motion for a directed verdict is provided for in CR 50.01.   It is to be made at the close of the evidence offered by an opponent.   The motion for JNOV is provided for in CR 50.02 and, pursuant thereto, allows a party who has moved for directed verdict at the close of all the evidence to thereafter move for a JNOV in accordance with the prior motion for a directed verdict.

The standard applicable for the trial court's grant of a motion for a directed verdict is the same as for a JNOV. A trial court ruling on either such motion is to consider the evidence presented before the trial court, and, if the moving party can establish that on basis of the evidence presented at trial that reasonable minds could not differ on the proper resolution of the case, then directed verdict/JNOV would be proper.   See CR 50.01;  Bierman v. Klapheke, 967 S.W.2d 16, 18–19 (Ky.1998), and Spivey v. Sheeler, 514 S.W.2d 667, 673 (Ky.1974).   Furthermore, we note that a directed verdict is improper unless there is a complete absence of proof on a material issue, or if no disputed issue of fact exists upon which reasonable minds could differ.   Hilsmeier v. Chapman, 192 S.W.3d 340, 345 (Ky.2006), citing Bierman, supra.   A reviewing court may not disturb a trial court's decision on a motion for directed verdict unless that decision is clearly erroneous.  Bierman at 18.

In determining whether or not a directed verdict was proper, the trial court was bound to favor the party against whom the motion was made with all inferences which may reasonably be drawn from the evidence.   Indeed, its sole duty was to determine whether the evidence favorable to the party against whom the motion was made is of such substance that a verdict rendered thereon would be palpably or flagrantly against the evidence, and of such a nature to indicate that a decision was reached as a result of passion or prejudice.   NCAA v. Hornung, 754 S.W.2d 855 (Ky.1988).

Smith argues that the trial court should have granted the directed verdict/JNOV motions based on violations of the Federal Motor Carrier Safety Regulations.   The Appellees disagree, asserting that the regulations were not pled specifically;  Double the Kentucky Legislature has not fully adopted all the regulations relied upon by Smith, specifically 49 C.F.R. § 398.7, and that the regulations do not impose strict liability upon the Appellees.   Thus, the Appellees argue that the matter was properly presented to the jury.

Sub judice, we believe this matter to be more appropriately addressed to the trial court on remand.   The Kentucky Legislature has certainly evidenced the intention to implement the Federal Commercial Motor Vehicle Safety Act of 1986 per KRS 281A.020. See also 601 K.A.R. 1:005. Double Thus, our legislature has adopted by statute the Federal Commercial Motor Vehicle Safety Act of 1986 and implemented same through regulations.   However, whether the Appellees were required to follow the regulations requires an assessment of facts under the applicable federal regulations and our Kentucky jurisprudence.   Particularly we see the gross weight of the vehicle Double as a threshold issue which is more appropriately addressed by the trial court on remand on whether the regulations apply to the subject vehicle.

We caution that even if the Appellees were required to follow a safety regulation and failed to do so, Smith must still prove causation in order to recover damages.   Smith is correct that the violation of a safety statute constitutes negligence per se.   See Worldwide Equipment, Inc. v. Mullins, 11 S.W.3d 50, 56 (Ky.App.1999) wherein the court noted:

In the case sub judice, a directed verdict was entered against M & R, the owner/operator of the coal truck, for failure to comply with the regulatory requirements of 601 KAR 1:005 § 2(7).   Such failure constituted negligence per se, since M & R disregarded the directives of a safety statute.

However, said violation must still have been the proximate cause of the injury in order to recover damages:

“Failure to comply with the terms of a statute is negligence per se.   However, in an action for damages, the violation of the statute must be the proximate cause of the injury to permit recovery.”  Peak v. Barlow Homes, Inc., Ky.App., 765 S.W.2d 577, 578 (1989).   It has been held that “[t]o constitute proximate cause, an act must be such that it induced the accident and without which the accident would not have occurred.”  Gerebenics v. Gaillard, Ky., 338 S.W.2d 216, 219 (1960).   Proximate cause has also been found to be “that which, in a natural and continual sequence, unbroken by any new, independent cause produces the injury, and without which the injury would not have occurred.”  Newton v. Wetherby's Adm'x, 287 Ky. 400, 403, 153 S.W.2d 947 (1941).  “When the original negligence is remote and only furnishes the occasion of the injury, it is not the proximate cause thereof.”  Peak, supra at 579.

Estate of Wheeler v. Veal Realtors and Auctioneers, Inc., 997 S.W.2d 497, 498–99 (Ky.App.1999).

We now turn to Smith's fourth argument concerning the cross-examination of a defense expert.   Smith argues that the court erroneously limited Smith's cross-examination of defense expert, Ken Agent.   Smith argues that she was not permitted to fully delve into Agent's overall expertise and credibility by asking questions related to the safe regulations of trucks, safety regulations, and driver qualifications, specifically in regards to his deposition testimony that a CDL was not required for this truck which Smith asserts was disproven at trial.   The Appellees argue that Agent, an expert in accident reconstruction, was called to give testimony regarding whether Turner had any ability to avoid this accident.   Smith attempted to expand the scope of Agent's testimony by getting him to address safety issues that might exist with operating a truck with a corroded rim.   However, Agent advised that such testimony was outside the scope of what he was asked to do.   Upon objection from the Appellees, the court restricted Smith to the subject matter of Agent's expertise and forbade a cross examination on general safety issues.

The general rule is that “[t]he presentation of evidence as well as the scope and duration of cross-examination rests in the sound discretion of the trial judge.   This rule applies to both criminal and civil cases.”  Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky.1997).  “A witness may be cross examined on any matter relevant to any issue in the case.”  KRE 611(b).  While the need for the clarifying process of cross examination is clear,Double a party does not possess a license to unlimited cross examination.   See Wallace v. Leedhanachoke, 949 S.W.2d 624, 625 (Ky.App.1996) (“the trial court retains broad discretion to control the scope and limits of cross-examination, and the exercise of that discretion does not constitute reversible error unless clear abuse can be shown.”).

Smith contends that sub judice relevant issues within the expertise of Agent could not be fully presented nor could his credibility as a witness be fully explored.   We agree with the Appellees that such arguments were not properly preserved for our review.   Smith failed to advise the court that the questions were being offered for impeachment purposes;  as such, we shall not entertain such an argument on appeal.   See Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky.2011).   Additionally, Smith did not offer avowal testimony;  thus, we are unclear whether the desired cross-examination questions were properly within Agent's expertise or not.   See KRE 103.   Accordingly, we find Smith's alleged error to be unpreserved for our review.

Next, we address Smith's fifth alleged error, that the court erred in permitting Agent to testify to the effects of Smith's alleged failure to use her seat belt without proper qualifications or foundation for that testimony.   At trial, Smith testified that she was wearing her seatbelt, but the accident report, ambulance report, and her medical records indicate that she was “unrestrained”.   Smith's own expert Stansifer testified that her failure to wear her seatbelt likely caused some of the injuries she is claiming.   After reviewing the relevant records, examining the photography of Smith's vehicle and reconstruction of the accident, Agent's opinion was that if Smith had been wearing her seatbelt the severity of her injuries would have been lessened. Double Smith argues that Agent's opinion was so vague, speculative, and lacking in proper foundation that it should not have been permitted.   We agree.   Agent has previously testified concerning his qualifications and was accepted as an expert witness on the subject of seat belt use:

Agent testified that he had a Bachelor's degree and a Master's degree in civil engineering from the University of Kentucky.   He stated that he was a registered professional engineer, a member of the Institute of Transportation Engineers, and a member of the National Academy of Science.   Agent further testified that he had been affiliated with organizations associated with the National Highway Transportation Safety Board.   He also testified concerning his extensive work in the study of motor vehicle accidents, the effect that seat belt use/nonuse has on accidents, and the reports and studies he has published in that field.   Over Tetrick's objections, the court accepted Agent as a qualified expert witness.   He then testified that Tetrick would not have had the injuries he suffered had he been wearing his seat belt.

Tetrick v. Frashure, 119 S.W.3d 89, 91 (Ky.App.2003).

Sub judice, Agent offered the same qualifications to the court as those offered in Tetrick.   Clearly, in light of Tetrick, Agent should have been qualified as an expert;  and the court did not err in so deciding.   However, sub judice, Agent did not opine as to which injuries were because of the secondary impact.   Further, if an injury was compounded by the failure to wear a seat belt, he did not opine as to the degree of such.   The jury was left to speculate as to which injuries were due to the failure to wear a seatbelt.   As noted in Tetrick, “the court in Bass stated that “[w]hat must be shown is a causal relation between the claimant's failure to wear a seatbelt and the degree of subsequent injury.”  Tetrick 93–94 citing Bass v. Williams, Ky.App., 839 S.W.2d 559, 566 (1992).   We do not believe that sub judice Agent's testimony presented a casual relation between Smith's failure to wear a seatbelt and the degree of subsequent injury.   While the admission of Agent's testimony was reversible error, such may be properly rectified on remand.

Next, we address Smith's sixth claimed error the court erred in failing to give the jury instructions tendered by Smith.   Smith argues that the court omitted additional duties in the given jury instructions which were submitted in Smith's tendered instructions.   These additional duties included the obligation to have a valid CDL and to prepare a daily written inspection report which specifically included the condition of the rims and tires.   In response, the Appellees argue that Smith failed to supply applicable case law to support her requested instructions;  moreover, the jury heard no testimony about the federal regulations nor how the alleged violations caused the accident.   Thus, the Appellees argue that the court's barebones instructions accurately address the issues plead by Smith and Smith could make any necessary argument in closing.

We note that “Appellate review of a “jury instruction is considered a question of law and is reviewed on appeal under a de novo standard of review.” '   McAlpin v. Davis Const., Inc., 332 S.W.3d 741, 743 (Ky.App.2011) citing Mountain Water Dist. v. Smith, 314 S.W.3d 312, 315 (Ky.App.2010).

Appellees are correct that Kentucky utilizes a bare bones approach to jury instructions:

In instructing juries, Kentucky uses the “bare bones” method.   This does not include explaining evidentiary matters or evidentiary presumptions within the instructions.

“They should not contain an abundance of detail, but should provide only the “bare bones” of the question for jury determination.   This skeleton may then be fleshed out by counsel on closing argument.”   Bertelsman & Phillips, Kentucky Practice, Vol. 7 (1991 Supp.), and authorities cited therein.

Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 824 (Ky.1992).

Our approach to jury instructions was reiterated by this Court recently:

Kentucky holds that there should not be an abundance of factual detail in jury instructions;  instead, the instructions should provide only the “bare bones” of the question for the jury.  Hamby v. University of Kentucky Medical Center, 844 S.W.2d 431 (Ky.App.1992).   Moreover, the enumeration of specific duties in an instruction serves merely to amplify the requirement of the broad duty to use ordinary care under the circumstances without expanding the scope of that duty.  Id. Additionally, Kelley's tendered instruction tended to overemphasize the requirements specific to overtaking.

Kelley v. Poore, 328 S.W.3d 683, 686 (Ky.App.2009).

We agree with the Appellees that a barebones approach to the jury instructions sub judice was proper and Smith was capable of fleshing out said instructions during her closing argument.   Accordingly, we find no error.

Last, Smith argues that the court erred in giving the jury a “sudden emergency” instruction as Turner was faced with a condition that he could anticipate or a condition brought about by the Appellees' own fault.   Smith argues that the fundamental duty to maintain and operate the vehicle was not changed by rim failure and that the sudden emergency doctrine is only available when there are multiple courses of action and the defendant chooses what later may have been the wrong course of action.   Smith offered evidence that competent, properly trained drivers should have been able to maintain the vehicle in the lane of traffic following the rim failure;  however, Turner's evidence was that there was no choice in the matter.   Thus, Smith argues the sudden emergency doctrine does not apply given the Turner's evidence of no choice.

The Kentucky Supreme Court has explained the sudden emergency doctrine:

The common-law doctrine of “sudden emergency” attempts to explain to a jury how to judge the allegedly negligent conduct of a person, plaintiff or defendant, who is suddenly confronted with an emergency situation that allows no time for deliberation.   The sudden emergency doctrine does not excuse fault;  it defines the conduct to be expected of a prudent person in an emergency situation.   In Harris v. Thompson, our predecessor court noted the purpose for including the sudden emergency qualification in instructions:

[W]hen a defendant is confronted with a condition he has had no reason to anticipate and has not brought on by his own fault, but which alters the duties he would otherwise have been bound to observe, then the effect of that circumstance upon these duties must be covered by the instructions.

In Kentucky, sudden emergency qualifications have been approved in automobile collision cases in which the defendant driver has encountered a patch of ice on the roadway or children or animals darting into the roadway.   Kentucky also recognizes that other situations such as other vehicles, swooping airplanes or falling boulders, could conceivably create an emergency for a driver that would justify a sudden emergency qualification.   In explaining why the qualification need be given in cases where a driver encounters an ice patch, our predecessor court stated:

While the driver must take into consideration the slippery condition of the highway, ․ if the evidence shows that the accident resulted from a condition of the road and not from any negligence of the driver, no liability results, since it is common knowledge that an automobile may skid on a slippery highway without any negligence on the part of the operator.

Regenstreif v. Phelps, 142 S.W.3d 1, 4–5 (Ky.2004)(internal citations omitted).

Smith relies upon Mitchell v. Mitchell, infra, to support her argument that Turner was not entitled to a sudden emergency instruction:

The testimony of Minnie did not substantially differ from this statement and the evidence is undisputed that while Pearlie might have been excited or disturbed by the close approach of the other car which was passing her, that car was never in her lane and there was never any reason for her to cut sharply to the right in order to avoid a collision.   The real question is whether the driver acted in a manner that was apparently necessary to a person of ordinary prudence and although the jury in answering the interrogatories submitted to them by the trial court exonerated Pearlie we fail to see how she acted reasonably and with prudence under the evidence in this case.

It is clear to us that the emergency doctrine cannot be applied where one seeking to invoke it has created the emergency by his own negligence.   As pointed out in the brief of the appellant, the evidence does not show nor does the record indicate that the manner in which the other car came close to the defendant was so unusual as to create an emergency.   We think the presumption of negligence on the part of Pearlie obtained in this case.   See Vernon v. Gentry, Ky., 334 S.W.2d 266, 79 A.L.R.2d 1 (1960).   In the Bybee Brothers v. Imes, 288 Ky. 1, 155 S.W.2d 492 (1941), it was announced that a person is not entitled to an instruction on emergency, if he brought about the emergency himself․

Moreover, the appropriateness of a sudden emergency instruction rests upon the theory that the affected party was suddenly confronted with a choice between alternative courses of action and voluntarily chose one over the other, it later appearing that such choice may have been the wrong one.   We do not think it is applicable to the situation in which the affected party, according to his own evidence, had no choice but was forced to take the course he did take.   See, for example, Moore v. Wheeler, Ky., 425 S.W.2d 541 (1968).

Mitchell v. Mitchell, 428 S.W.2d 222, 223–24 (Ky.1968).

That a sudden emergency instruction is only available to a party which did not create the danger has long been the law in this Commonwealth:

In Commonwealth v. Bowman, 267 Ky. 50, 100 S.W.2d 801, 803, we held “that one meeting a sudden danger not of his own creation, although bound to take active measures to save himself from impending harm, is not held by the law to the same degree of judgment and activity that he might be held were the conditions otherwise.   A choice of evils or of dangerous courses may be all that is left to a man, and he is not to be blamed if he chooses one and not the other to escape if he is in difficult and perilous circumstances and is compelled to decide hurriedly.”

Pennington's Adm'r v. Pure Milk Co., 279 Ky. 235, 130 S.W.2d 24, 26 (1939).

Sub judice the trial court issued the following instruction to the jury:

That if immediately before the collusion the wheel on Coy Turner, Jr.'s truck suddenly and without previous warning failed, and thereby confronted him with an emergency in which it appeared to him the exercise of reasonable judgment that he was in imminent danger of collision, and if such emergency was not caused or brought on by any failure of Coy Turner, Jr. to perform his duties as above set forth, he was not thereafter required to adopt the best course possible in order to avoid the apparent danger, but was required to exercise only such care as the jury would expect an ordinarily prudent person to exercise under the same conditions and circumstances.

We believe that this instruction goes to the heart of the matter of the case-whether Turner was confronted with a sudden emergency, not of his own devise, and this is a question of fact for the jury.   See McAlpin v. Davis Const., Inc., 332 S.W.3d 741, 744 (Ky.App.2011)(“Whether Hurley was confronted with a sudden emergency is a question of fact for the jury, and if the evidence supports such a finding, the jury will be given a sudden emergency instruction.”)  “The rule is well settled that “[e]ach party to an action is entitled to an instruction upon his theory of the case if there is evidence to sustain it.” '  McAlpin at 744 citing Farrington Motors, Inc. v. Fidelity & Cas. Co. of N.Y., 303 S.W.2d 319, 321 (Ky.1957) (citations omitted). Double Finding no error in the instruction, we affirm on this issue.

In light of the aforementioned, we reverse and remand this matter for a new trial.

DIXON, JUDGE, CONCURS.

TAYLOR, JUDGE, CONCURS IN RESULT ONLY.

CAPERTON, JUDGE: