Perry v. Goss
| Decision Date | 06 March 1970 |
| Docket Number | No. 370,370 |
| Citation | 253 Ind. 603,255 N.E.2d 923,20 Ind.Dec. 433 |
| Parties | Roscoe PERRY, Appellant, v. Eugene T. GOSS, Jr., Eugene T. Goss, Appellees. S 51. |
| Court | Indiana Supreme Court |
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 to be in error. The case is one for personal injuries sustained by a pedestrian while attempting to cross Minnesota Street at the intersection of Minnesota and Laurel in the City of Indianapolis. A trial to the jury resulted in a verdict in favor of the appellees. We are concerned mainly with alleged errors relating to the instructions. The first instruction complained of is instruction No. 5, which reads 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 appellant-plaintiff objected to this instruction for the reason first, that it is mandatory in nature and omits essential elements therein, to wit: it fails to define contributory negligence because the word proximate is omitted therefrom. A mandatory instruction is one in which there is an attempt to set out certain facts upon which the jury is directed to reach a certain result. Although mandatory instructions are not necessarily bad, we look with disfavor upon their use because of the risk involved in making a statement of the evidentiary facts under which the law would mandate a certain result. White v. Evansville American Legion Home Association (1965), 247 Ind. 69, 210 N.E.2d 845. Instructions which are mandatory in character, which attempt to set up a factual situation directing the jury to a certain result, are to be distinguished from instructions which merely state propositions of law without incorporating a factual situation, as for example telling the jury that if contributory negligence exists the plan is not entitled to recover. In the latter case the court is merely stating propositions of law not based upon a detailed factual situation. In order to properly instruct a jury it is necessary that the court state general propositions of law and their application to the case. Instruction No. 5 before us does not set up a detailed factual situation and then instruct the jury they must come to a certain result either for or against the plaintiff. Instruction No. 5 in fact attempts to state a proposition of law which is applicable when contributory negligence appears in the picture. This instruction has the general characteristics of ordinary instructions given by the court based upon legal principles. In our opinion this instruction is not to be condemned on the ground that it falls within the category known as mandatory instructions which attempt to set out detailed factual situations.
We next consider the instruction under the contention that it does not adequately describe contributory negligence because there is omitted therefrom the element of proximate cause. Of course the same contention could be made to the use of the word negligence itself in any instruction unless at all times the adjective 'proximate' were used in connection therewith since it is only 'proximate' negligence that creates any liability in the law. Appellant's contention can not stand. The general principle is that all instructions given in a trial must be read together and that each instruction need not redefine each word or legal proposition therein. Therefore when negligence or contributory negligence is used in an instruction and it has previously been properly defined, it is not necessary that each time it be used in a subsequent instruction that the entire definition be reincorporated in that instruction separately. We find that in instruction No. 2 given by the court, not only is negligence correctly defined, but we also notice that in instruction No. 2 contributory negligence is defined to wit: We find that contributory negligence is used in instruction 5 in the context in which it is defined in instruction No. 2. Instructions, it is said, must be read as a whole and not each independently and separately. Failure to state the entire law in each instruction is not error, 28 I.L.E. Trial § 272, p. 266. We find no error in the giving of instruction No. 5.
The next contention by appellant is that instruction No. 4 in substance informs the jury that appellant cannot recover where a 'mere accident' occurs. Instruction No. 4 reads as follows:
The negligence charged in the Complaint is not to be presumed from the happenings of the accident in question and the consequent personal injuries to the Plaintiff and damage to the Plaintiff's personal property as the result thereof, but it must be proven, and in order to recover, the evidence must be sufficient to establish by a fair preponderance, that the negligence causing the damage complained of was that charged in the Complaint against the...
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...often that the jury is overly impressed with some aspect of the case that the giving of the instruction is erroneous. Perry v. Goss, (1970) 253 Ind. 603, 255 N.E.2d 923. The repetition in this case was not of such 7 Weidenhamer's tendered Instruction No. 3, American Optical's tendered Instr......
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