255 N.E.2d 923 (Ind. 1970), 370 S 51, Perry v. Goss

• Docket Nº: 370 S 51.
• Citation: 255 N.E.2d 923, 253 Ind. 603
• Party Name: Roscoe PERRY, Appellant, v. Eugene T. GOSS, Jr., Eugene T. Goss, Appellees.
• Case Date: March 06, 1970
• Court: Supreme Court of Indiana

Page 923

255 N.E.2d 923 (Ind. 1970)

253 Ind. 603

Roscoe PERRY, Appellant,

v.

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

No. 370 S 51.

Supreme Court of Indiana.

March 6, 1970

Page 924

Rehearing Denied April 20, 1970.

Page 925

[253 Ind. 604] John F. Townsend, Jr., Townsend & Townsend, Indianapolis, for appellant.

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

ON PETITION 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 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 [253 Ind. 605] are concerned mainly with alleged errors relating to the instructions. The first instruction complained of is instruction No. 5, which reads as follows:

'Instruction No. 5

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...