Davison v. Williams

• Decision Date: 04 December 1968
• Docket Number: No. 1268S200,1268S200
• Citation: 242 N.E.2d 101,251 Ind. 448
• Parties: , 38 A.L.R.3d 521 Henry DAVISON, Appellant, v. Herman L. WILLIAMS, Appellee.
• Court: Indiana Supreme Court

Page 101

242 N.E.2d 101

251 Ind. 448, 38 A.L.R.3d 521

Henry DAVISON, Appellant, v. Herman L. WILLIAMS, Appellee.

No. 1268S200.

Supreme Court of Indiana.

Dec. 4, 1968.

Robert W. Davis, Corydon, for appellant.

James D. Williams, Corydon, for appellee.

ON PETITION TO TRANSFER

HUNTER, Judge.

This is a civil action brought by Herman L. Williams for damages for personal injuries alleged to have been sustained by him as a result of a collision which occurred when an automobile driven by Henry Davison, the Defendant and Petitioner herein, crashed into the rear-end of Williams' automobile. After trial by jury, Williams was awarded damages in the amount of $7,500. The judgment of the trial court was affirmed by the Appellate Court of Indiana, Division I. Davison v. Williams (1968), Ind.App., 235 N.E.2d 90. The case is now before this Court on a petition to transfer. Rule 2--23, Rules of the Supreme Court of Indiana.

The evidence offered at trial revealed that Plaintiff-Respondent Williams was driving to work on the day of the collision traveling over rather hilly terrain when it became necessary for him to stop his automobile on the traveled portion of the highway to await the passage of a train. The Defendant-Petitioner, who was traveling in the same direction behind Respondent, upon making a curve in the road, saw that Respondent's auto was stopped for the train. However, Petitioner's brakes failed completely, causing him to collide with the rear-end of Respondent's auto.

In his petition to transfer, Petitioner asserts that the Appellate Court's opinion in this case contravenes the ruling precedent of this Court by approving the following instructions given by the trial court to the jury:

PLAINTIFF'S INSTRUCTION 5,

'There was at the time of the accident in controversy a statute of the State of Indiana in full force and effect providing that 'Every motor vehicle other than a motor-cycle or motor-driven cycle when operated upon a highway shall be equipped with brakes adequate to control the movement of and to stop and hold such vehicle including two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels. If these two separate means of applying the brakes are connected in any way they shall be so constructed that failure of any one part of the mechanism shall not leave the motor vehicle without brakes on at least two wheels.' If you find from the evidence that at the time of the accident in controversy the defendant was operating upon a public highway an automobile that was not equipped with brakes adequate to control its movement and to stop and hold it, including two separate means of applying such brakes, he was guilty of negligence as a matter of law and if as the proximate result thereof, the plaintiff was injured while in the exercise of reasonable care himself, he is entitled to recover in this action such damages as you may find he has thereby sustained, but not to exceed the amount prayed for in the plaintiff's complaint.'

PLAINTIFF'S INSTRUCTION 6,

'There was also at the time of the accident in controversy, a statute of the State of Indiana in full force and effect providing that 'All brakes shall be maintained in good working order.' If you find from the evidence that at the time of the accident in controversy, the defendant was operating upon a public highway an automobile with brakes which were not maintained in good working order he was guilty of negligence as a matter of law and if as the proximate result thereof the plaintiff was injured while in the exercise of reasonable care himself, he is entitled to recover in this action such damages as you may find he has thereby sustained.'

PLAINTIFF'S INSTRUCTION 7,

'There was also at the time of the accident in controversy a statute of the State of Indiana in full force and effect providing that, 'Every motor vehicle or combination of vehicles, at all times and under all conditions of loading, shall, upon application of the service (foot) brake, be capable of decelerating and developing a braking force equivalent to such deceleration according to the minimum requirements set forth herein and also of stopping within the distances set forth herein. Passenger vehicles, not including busses, stopping distance in feet, 25; deceleration in feet per second, 17, and equivalent braking force in percentage of vehicle or combination weight, 53%. Compliance with standards set forth herein shall be determined either (1) by actual road tests conducted on a substantially level (not to exceed a plus or minus one per cent grade), dry, smooth, hard-surfaced road that is free from loose material, and with stopping distance measured from the actual instant breaking controls are moved and from an initial speed of 20 miles per hour, or (2) by suitable mechanical tests in a testing lane which recreates such same conditions, or (3) a combination of both methods.' If you find from the evidence that at the time of the accident in controversy, the defendant was operating upon a public highway an automobile that was not equipped with brakes meeting the requirements of the said statute, he was guilty of negligence as a matter of law and if as the proximate result thereof the plaintiff was injured while in the exercise of reasonable care himself, he is entitled to recover in this action such damages as you may find he has thereby sustained.'

At the same time, the trial court refused to give Defendant's Instruction 8, which reads as follows:

'A person who is driving an automobile on the public highways is not bound to anticipate or foresee any mechanical failure on the part of his automobile unless he actually knew of the defective condition or could have discovered the same in the exercise of reasonable care. Therefore, if you find that the sole proximate cause of the collision in this case was caused by a failure of the brakes on the automobile of the defendant, and if you further find that the defendant did not know that the brakes on his automobile were defective or that he could not have discovered the defective condition by a reasonably careful inspection, your verdict must be for the defendant.'

The opinion of the Appellate Court suggests that its refusal to accept Petitioner's claim of error on the part of the trial court in giving Plaintiff's Instructions 5, 6 and 7, above, was based primarily upon Petitioner's failure at trial to tender instructions which would have corrected the mistakes he was objecting to in the instructions submitted by Plaintiff. In so holding the Appellate Court cites the following language from Wiltrout, Indiana Practice:

'A party cannot complain of an instruction given by the court which, although incomplete, is a correct statement of the law so far as it goes, where such party did not tender a more full instruction on the subject.' 2 Wiltrout, Indiana Practice, § 1400(5), p. 342 (1967)

However, it should be noted that the next sentence appearing in Wiltrout makes the above statement inapplicable to the present case. The next sentence reads:

'Except as to mandatory instructions, ambiguity, inaccuracy or incompleteness of one instruction may be cured by another instruction, where they are not inconsistent with each other.' 2 Wiltrout, supra. (Emphasis added.)

The exception relating to mandatory instructions is classicly applicable to the case here before us.

'A mandatory instruction is one which unequivocally charges the jury that if they find from a preponderance of the evidence that a certain set of facts exists, they must render a verdict in accordance therewith either for the plaintiff or defendant.' 2 Wiltrout, Indiana Practice, § 1400(8), p. 344 (1967)

Plaintiff's Instructions 5, 6 and 7 can only be viewed as mandatory instructions. They had the effect of instructing the jury that if they found from the evidence that Petitioner violated a safey regulation they could only find that Petitioner had been 'guilty of negligence as a matter of law,' and upon a finding of proximate cause they were required to grant damages to the Respondent. No mention was made of the Indiana law regarding excuse or justification in cases of alleged negligence involving violation of safety regulations.

As noted above, it is well-settled in Indiana that a mandatory instruction must set out all elements essential for recovery, and if an essential element is omitted, the instruction is erroneous and cannot be cured by other instructions. Taylor v. Fitzpatrick (1956), 235 Ind. 238, 132 N.E.2d 919; Redd v. Indianapolis Railways (1951), 121 Ind.App. 472, 97 N.E.2d 501. As the discussion below will indicate, information regarding the effect of excuse or justification in statutory negligence cases was essential to the completeness of all three of the above-quoted Plaintiff's instructions.

In approving the giving of the mandatory Plaintiff's Instructions 5, 6 and 7, and in approving the refusal to give Defendant's Instruction 8, the Appellate Court, in effect, declared the law of Indiana to be as follows: the violation of the provisions of a statute in the operation of a motor vehicle on a public highway, which violation is the proximate cause of the injury, is negligence per se and, once such violation is proved, as a matter of law the violator is liable for all injuries thereby caused. Since 1916, the law of Indiana has been to the contrary. Conder v. Griffith (1916), 61...