opinion: CAR & GENERAL INS. CORPORATION v. KEAL DRIVEWAY CO. et al.
  No. 10420.
  Circuit Court of Appeals, Fifth Circuit.
  Jan. 20, 1943.
  Rehearing Denied Feb. 12, 1943.
  Wm. H. Jackson, of Tampa, Fla., for appellant.
  R. W. Shackleford, of Tampa, Fla., for appellees.
  Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.
  McCORD, Circuit Judge.
  Ralph Campbell was injured when his automobile collided, with another automobile owned by Keal Driveway Company, and which was being operated at the time by its employee, R. S. Bunnell. Campbell, who was working in the course of his employment with Franklin Products Corporation, elected to accept compensation benefits under the provisions of the Florida Workmen’s Compensation Act. As subrogee, Car & General Insurance Corporation, the employer’s insurance carrier, brought this action on behalf of itself and Campbell, to recover damages against Keal Driveway Company and R. S. Bunnell for the injuries sustained by Campbell. Sec. 39, Florida Workmen’s Compensation Act, Acts 1935, c. 17481. The plaintiff alleged that the accident was the result of Bunnell’s negligence; and the defendants answered denying that they were guilty of negligence, and alleging that in any event Campbell was guilty of contributory negligence which, barred recovery. The case was tried to a jury which found the defendants guilty of negligence, and Campbell guilty of contributory negligence. Judgment was thereupon entered for the defendants and the plaintiff appealed.
  The appellant contends that the trial court erred (1) in submitting the question of contributory negligence to the jury, and (2) in failing, after being requested to do so, to charge the jury on the law of sudden emergency.
  About ten o’clock in the morning on May 14, 1941, Campbell was driving his Ford automobile in a northerly direction along a paved highway in Hillsborough County, Florida. At that time and place Bunnell, in the course of his employment with Keal Driveway Company, was operating a Nash automobile and by tandem arrangement was towing another Nash automobile along the highway in a southerly direction. The road was straight and twenty feet wide. The day was clear. Campbell and Bunnell were driving their cars at speeds from forty-five to fifty miles per hour, and they approached and collided head-on, and both drivers were rendered unconscious by the impact. Campbell was seriously injured.
  The drivers were the only eye-witnesses to the accident, and both testified that the collision was head-on, and the photographic evidence is to the same effect. Shortly after the accident Bunnell signed a statement to the effect that the Nash automobile was. sideswiped, but his evidence on the trial was that the accident was a head-on collision, and that it was caused by Campbell driving the Ford automobile from its right-hand lane and across the road and into the path of the oncoming Nash automobiles. Campbell’s version of the accident is materially different from that given by Bunnell. He testified that as he moved along the highway he saw the Nash automobile coming toward him about one-quarter of a mile away; that it was on its left side of the road, and on his side; that for a short distance its wheels would run off the pavement and onto the shoulder of the road; that as it came nearer it gradually moved over to its proper side of the road, and he then noticed it was towing another automobile; that when the cars came within about 200 or 250 feet of his car they were on their proper side of the road; that as they came nearer and about 200 feet from him he could not see a driver at the wheel of the first car; that when the first car came within a few feet of him, between ten and twenty feet, it suddenly swerved across the center line and into the path of his automobile; and that the cars met head-on and he was rendered unconscious.
  The testimony was in sharp conflict, and it was for the jury to weigh the evidence and determine whether the plaintiff had established by a preponderance of the evidence that Bunnell was guilty of negligence which caused the accident, and, if so, whether the defendant had carried its burden of establishing by a preponderance of the evidence that Campbell had been guilty of contributory negligence.
  The issue of contributory negligence was for the jury, but we think that on the facts of this case it was prejudicial error to submit the issue without charging the jury on the rule of sudden emergency, proper request for such charge having been made, and its refusal objected to. Moreover, after the jury had retired to consider its verdict, it re-entered the court room and request was made by a juror for further instructions as to the duty of Campbell if “he was frightened by the oncoming danger and he tried to swing to the left to get out of the path of trouble.” Counsel for the plaintiff again requested the court to charge as to one’s duty when confronted by a sudden emergency, but the court refused to give such charge.
  When Campbell first saw the Keal cars, they were on the wrong side of the road and one-quarter of a mile away. They then moved gradually to their right side of the road and continued to approach. Campbell had the right to assume that they would, in obedience to the rules of the road, stay on that side. Until something occurred to make him think otherwise, he had every right to assume that Bunnell would move his vehicles along their proper side of the road in a careful and prudent manner.
  The law takes into account situations as they exist at the time of and shortly before the happening of an accident. According to Campbell’s testimony, the automobiles were about 200 feet apart when he first noticed that they appeared to be operating without a driver. This was his first notice that their driver was missing, asleep, or otherwise incapacitated. The cars were then moving at combined speeds of from ninety to one hundred miles per hour — from 132 to 146 feet per second. There was then, at most, little more than one second in which Campbell could act to avoid danger.
  In such cases as this, it is the law that one placed in a position of sudden emergency or peril by the negligence of another, and not by his own negligence, is not held to the same degree of care and prudence as one who has time for thought and reflection. Thus, if one finds himself in a position of sudden peril and acts as a person of ordinary prudence would act under such circumstances, the jury may find him free from negligence or contributory negligence, although he might have been able to avoid the accident under less pressing circumstances. 38 Am.Jur., Negligence, § 41; 5 Am.Jur., Automobiles, § 171; White v. Hughes, 139 Fla. 54, 190 So. 446, 452; Hainlin v. Budge, 56 Fla. 342, 47 So. 825, 830; Lehigh Valley R. Co. v. Kilmer, 2 Cir., 231 F. 628, 632; Payne v. Shotwell, 3 Cir., 273 F. 806, 811. Cf. Feck’s Adm’r v. Bell Line, 284 Ky. 288, 144 S.W.2d 483; Bloxom v. McCoy, 178 Va. 343, 17 S.E.2d 401.
  If the jury believed that Bunnell was not at the wheel and that the Keal cars suddenly swerved into the path of Campbell’s automobile, it could have found that a real emergency existed. If the jury found that under such circumstances of sudden peril Campbell did turn left, or did nothing but keep to his proper side of the road, it might have, under proper instructions, excused him for not thinking and acting otherwise in the second or fraction of a second intervening.
  Failure to charge the jury as to the law of sudden emergency was error. The judgment is reversed and cause is remanded for a new trial.
  Reversed and remanded.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.