¶1dissenting. The majority opinion takes the position that Wilkerson was stopped due to exigencies of traffic. This is simply not borne out by the facts.
¶2Black’s Law Dictionary, Fifth Ed. (1979), defines “exigence” as:
Demand, want, need, imperativeness. Something arising suddenly out of the current of events, any event or occasional combination of circumstances calling for immediate action or remedy; a pressing necessity; a sudden and unexpected happening or an unforeseen occurrence or condition .... State of being urgent or exigent; pressing need or demand; also, case requiring immediate attention, assistance, or remedy; critical period or condition pressing necessity. . . .
¶3I quote appellee Wilkerson’s testimony as abstracted:
[A]t the point where I was stopped, there was nothing that would have kept me from pulling my vehicle over on the shoulder ... It was a new truck and it was equipped with some safety warning devices. It had triangular warning devices. I knew they were there, what they were for, and how to use them.
I pulled my truck up in the right, outside lane of traffic and stopped 12 or 13 feet behind the vehicle in front of me. I had been forewarned by CB radio that there was a wreck up in front of me. I wasn’t even up to the bridge yet. I was probably 100 yards or less from the bridge ... There was plenty of shoulder for me to pull my truck over on and there was nothing to keep me from pulling over.
I had safety devices in my truck and knew how to use them. When I pulled up there I locked my brakes on my truck trailer and turned my flashers on. I was conscious of the fact that there could be someone come up behind me. I didn’t get out of my truck because I was afraid I’d get hurt — get killed — because it was so foggy you couldn’t see.
I sat in the cab of my truck for 10 minutes before the accident occurred with the safety devices, triangular warning facilities, right there in the truck with me. I did not get out and go back and put up the triangular warning devices. I did not ever move my truck over to the right. I never moved my truck again after I pulled it up there and locked the wheels and sat there in it.
I was forewarned that there were some problems up on the bridge.
¶4This was not a situation where Wilkerson had stopped due to the exigencies of traffic. Wilkerson knew of the wreck ahead of him before he ever got to the bridge. He had been warned of the problem by CB radio. There was plenty of shoulder for him to pull over on. He had warning devices on board which he declined to use for fear, he says, that he might get hurt or killed.
¶5The refused instructions merely set out the duty upon Wilkerson imposed by statute and regulation. They did not deprive Wilkerson of any argument concerning his own lack of negligence or negligence on the part of the appellants. The concluding paragraph of AMI 601 tells the jury that a violation of the statute and regulation, although not necessarily negligence, is evidence of negligence to be considered by the jury along with all the facts and circumstances in the case.
¶6The appellants’ theory of the case and the evidence they presented required the giving of AMI 601, including the statute and regulation. The majority relies on Burchfield v. Carroll, 255 Ark. 245, 499 S.W.2d 620 (1973), which, in my view, has no application inasmuch as the accident there occurred in a residential section. The statute was not applicable because it specifically excludes residential and business districts.
¶7The majority also relies on American Bus Lines, Inc. v. Merritt, 221 Ark. 596, 254 S.W.2d 963 (1953). I, too, rely on that case wherein the court stated:
Every case must be decided on its own facts; and in some cases, as here, it becomes a question for the jury as to whether it is practical to stop the vehicle off the highway. In others, as the Barboro case, where it is obvious that it would have been impractical to remove the car from the pavement before stopping to permit the passage of another vehicle before turning to the left, and where reasonable minds cannot reach any other conclusion, then it becomes a matter of law that the statute is not applicable. But here, where reasonable minds may differ as to whether it is practical to remove the vehicle from the pavement before stopping, it becomes a question for the jury, and the statute may be taken into consideration in determining whether there was negligence in stopping the bus on the pavement.
¶8This accident occurred outside a business or residential district. There were no exigencies of traffic because Wilkerson had advance notice before he ever reached the accident scene. The appellants had the right to submit their theory of the case to the jury based on the statute and regulation.
¶9I restate Merrit as follows: “where reasonable minds might differ as to whether it is practical to remove the vehicle from the pavement before stopping, it becomes a question for the jury.”
¶10I would reverse and remand for a new trial.