252 N.E.2d 252 (Ind.App. 1969), 469 A 58, Perry v. Goss

Docket Nº469 A 58.
Citation252 N.E.2d 252
Party NameRoscoe PERRY, Appellant, v. Eugene T. GOSS, Jr., Eugene T. Goss, Appellees.
Case DateNovember 17, 1969
CourtCourt of Appeals of Indiana

Page 252

252 N.E.2d 252 (Ind.App. 1969)

Roscoe PERRY, Appellant,

v.

Eugene T. GOSS, Jr., Eugene T. Goss, Appellees.

No. 469 A 58.

Appellate Court of Indiana, Division No. 2.

November 17, 1969

Rehearing Denied Dec. 17, 1969.

Page 253

John F. Townsend, Jr., Indianapolis, for appellant; Townsend & Townsend, Indianapolis, of counsel.

James E. Rocap, Jr., John A. Young, Indianapolis, for appellees; Rocap, Rocap, Reese & Young, Indianapolis, of counsel.

PFAFF, Chief Justice.

Appellant, a pedestrian, was injured on July 6, 1967, while attempting to cross Minnesota Street at the intersection of Minnesota and Laurel Streets in Indianapolis, Indiana. Appellee, Eugene T. Goss, Jr., a minor, was driving his vehicle in a northerly direction on Laurel Street, and at the intersection of Minnesota and Laurel Streets appellee failed to stop before turning onto Minnesota Street, a preferential street, thereby striking appellant as appellant attempted to cross Minnesota Street. Trial to a jury resulted in a verdict in appellee's favor, and appellant's motion for new trial was subsequently overruled.

Appellant first argues that the court was in error in giving, over objection, the court's instruction No. 5, which states as follows:

'The burden on the question of contributory negligence in actions for personal injuries and for damages to property, rests upon the defending party.

'Contributory negligence on the part of the plaintiff must be established by a fair preponderance of the evidence; but if all the evidence, whether introduced on the part of the plaintiff or the defendant, should establish the fact of contributory negligence on the plaintiff's part, it would avail the defending party and prevent the plaintiff from recovering.'

The court's instruction No. 5 is a mandatory instruction which informed the jury of the fact that if there was evidence that the appellant was contributorily negligent, established by a fair preponderance of the evidence, such evidence would preclude plaintiff-appellant's recovery. While a mandatory instruction is permissible, an erroneous mandatory instruction which positively directs the jury to find for one party and against another party, while omitting an essential element, properly serves as a basis for reversal. In Wachtstetter v. Hardin (1969), Ind.App., 250 N.E.2d 504, this court discussed the applicable legal principles relating to...

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2 practice notes
  • 449 N.E.2d 1129 (Ind.App. 4 Dist. 1983), 4-282A41, Medical Licensing Bd. of Indiana v. Ward
    • United States
    • Indiana Court of Appeals of Indiana
    • June 9, 1983
    ...to make a special finding of fact and for further proceedings thereafter not inconsistent with this opinion." Id. at 179, 252 N.E.2d at 252. Additionally, we note the language of another section of the Administrative Adjudication Act permits an agency to modify its order during the per......
  • 255 N.E.2d 923 (Ind. 1970), 370 S 51, Perry v. Goss
    • United States
    • Indiana Supreme Court of Indiana
    • March 6, 1970
    ...TO TRANSFER ARTERBURN, Judge. This matter comes to us for consideration on a petition to transfer the cause from the Appellate Court (See 252 N.E.2d 252). The Appellate Court's opinion reversed the trial court for the giving of certain instructions. The giving of said instructions was found......
2 cases
  • 449 N.E.2d 1129 (Ind.App. 4 Dist. 1983), 4-282A41, Medical Licensing Bd. of Indiana v. Ward
    • United States
    • Indiana Court of Appeals of Indiana
    • June 9, 1983
    ...to make a special finding of fact and for further proceedings thereafter not inconsistent with this opinion." Id. at 179, 252 N.E.2d at 252. Additionally, we note the language of another section of the Administrative Adjudication Act permits an agency to modify its order during the per......
  • 255 N.E.2d 923 (Ind. 1970), 370 S 51, Perry v. Goss
    • United States
    • Indiana Supreme Court of Indiana
    • March 6, 1970
    ...TO TRANSFER ARTERBURN, Judge. This matter comes to us for consideration on a petition to transfer the cause from the Appellate Court (See 252 N.E.2d 252). The Appellate Court's opinion reversed the trial court for the giving of certain instructions. The giving of said instructions was found......