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Torts No. 06-02-00072-CV, 7/16/2003. Click here for the full text of this decision FACTS: Timothy Evans was involved in a traffic accident with J. W. Allwhite. Evans sued Allwhite for negligence. A jury found Allwhite not negligent, and the trial court rendered a take-nothing judgment. Evans appeals, complaining of the trial court’s instructions to the jury on unavoidable accident and sudden emergency. HOLDING: Affirmed. Evans contends the trial court erred by including an instruction to the jury on sudden emergency. The trial court stated in its instructions, If a person is confronted by an “emergency” arising suddenly and unexpectedly, which was not proximately caused by any negligence on his part and which, to a reasonable person, requires immediate action without time for deliberation, his conduct in such an emergency is not negligence or failure to use ordinary care if, after such emergency arises, he acts as a person of ordinary prudence would have acted under the same or similar circumstances. The elements of sudden emergency are 1. the condition must have arisen suddenly; 2. it must have arisen unexpectedly; 3. it must not have been proximately caused by the negligent act or omission of the person whose conduct is being inquired about; and 4. the conduct which would constitute negligence under ordinary circumstances must have occurred after the emergency arose without giving the person time to deliberate. Evans contends Allwhite was not entitled to the instruction because “the event classified as an emergency occurred early enough for Appellee [Allwhite] to deliberate a course of action.” He supports this contention with Allwhite’s testimony that he began to feel ill three or four blocks before he lost consciousness and that he intended to pull his vehicle over. Evans contends Allwhite should have immediately pulled his vehicle over in another business’s parking lot instead of attempting to proceed through the intersection. Evans asserts Allwhite made the decision to keep traveling after he felt ill and that decision in and of itself was negligence. Essentially, Evans urges the court to divide the incident into at least two events: 1. Allwhite feeling ill, yet continuing to drive; and 2. Allwhite losing consciousness and causing the accident that followed. The trial court, however, apparently considered these events as one. This approach is not unsupported by the record. Again, the actual distance from the time Allwhite first became ill to the point of the accident was approximately two blocks. At 40 mph, the time lapse from the first onset of illness to the point of the accident was, of necessity, a very short one. Moreover, Allwhite had never lost consciousness like this before. He testified that, had he known he was going to “pass out,” he would have pulled over. Considering the short period of time between when Allwhite said he began to feel ill and when the accident occurred, plus the fact that Allwhite had never lost consciousness like this before, the court cannot say it was an abuse of discretion for the trial court to instruct the jury on sudden emergency. OPINION: Carter, J.; Morriss, C.J., Ross and Carter, JJ.

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