267 N.E.2d 198 (Ind.App. 1971), 1069A187, Echterling v. Jack Gray Transport, Inc.

Docket Nº1069A187.
Citation267 N.E.2d 198, 148 Ind.App. 415
Party NameRalph Eugene ECHTERLING, Administrator of the Estate of Janice Rae Echterling, Deceased, Appellant, v. JACK GRAY TRANSPORT, INC., a Corporation, and Ralph M. Trudeau, Appellees.
Case DateMarch 08, 1971
CourtCourt of Appeals of Indiana

Page 198

267 N.E.2d 198 (Ind.App. 1971)

148 Ind.App. 415

Ralph Eugene ECHTERLING, Administrator of the Estate of

Janice Rae Echterling, Deceased, Appellant,

v.

JACK GRAY TRANSPORT, INC., a Corporation, and Ralph M.

Trudeau, Appellees.

No. 1069A187.

Appellate Court of Indiana, Division No. 2.

March 8, 1971

Page 199

Page 200

[148 Ind.App. 416] Edward J. Raskosky, George Kohl, Nowicki, Raskosky, Kohl & Gaines, Hammond, for appellant.

John W. Barce, Barce, Barce & Vann, Kentland, Barnard A. Petrie, Petrie & Petrie, Hammond, for appellees.

[148 Ind.App. 417] JOFFMAN, Chief Justice.

Plaintiff-appellant appeals a negative judgment entered by the trial court on the verdict of the jury in a wrongful death action.

The facts in the record before us most favorable to appellees may be summarized as follows:

Janice Rae Echterling, deceased, was driving south on U.S. Highway 41, a four-lane highway with a double yellow center line, in Highland, Indiana. A tractor-trailer being driven by appellee-Ralph M. Trudeau while in the course of his employment by appellee-Jack Gray Transport, Inc. was proceeding north on said highway in the inner northbound lane due to the outer northbound lane being barricaded for the purpose of road construction. A vehicle driven by one Richard A. Dague and traveling in the same direction in front of the deceased collided with appellee's tractor-trailer. Following the first collision appellee's tractor-trailer crossed over the double yellow center line into the southbound lanes and crushed the vehicle being operated by the deceased. There was a dispute as to whether appellee's tractor-trailer crossed the double yellow center line prior to the first impact.

Appellant originally filed a complaint for wrongful death alleging negligence on the part of appellees and the operator of the vehicle which first collided with appellee-Transport's tractor-trailer. After a settlement was reached between appellant and the operator of the vehicle which first collided with appellee-Transport's tractor-trailer, proper amendments were made and appellant pursued only appellees.

Following a trial by jury the trial court entered judgment for defendants-appellees in accordance with the verdict. The overruling of appellant's motion for a new trial is the sole assignment of error.

Appellant has chosen to brief and argue that the trial court erred in giving certain of defendants-appellees' instructions,

Page 201

and that the trial court erred in overruling appellant's objection[148 Ind.App. 418] to testimony of Sgt. John Cosgrove regarding an opinion previously given by Sgt. Cosgrove.

It is the well-established law in Indiana that '(t)he decision of the trial court comes to us clothed with the presumption that a correct result was reached and the burden is upon appellant* to overcome that presumption.' A.S.C. Corporation v. First Nat. Bank, etc., 241 Ind. 19, at 23, 167 N.E.2d 460 at 462 (1960); Souerdike v. State, 231 Ind. 204, 206, 108 N.E.2d 136, 138 (1952).

Appellant contends that the trial court erred in giving to the jury defendants-appellees' Instructions Nos. 4, 5 as modified, 6, 7, 10 as modified, and 12.

Appellees' Instruction No. 5, as modified, is as follows:

'If you should find from a consideration of all of the evidence that the plaintiff's decedent herein was guilty of any negligence, no matter how slight, which proximately contributed to her death, then plaintiff would not be entitled to recover in this cause.'

Appellant objected on the grounds that there is no evidence that the decedent was guilty of any negligence and that it is a mandatory instruction.

In reviewing the record before us we may consider only the evidence most favorable to appellees, together with any reasonable inferences which may be drawn therefrom, and it is only when there is no conflict in the evidence and it can lead only to a conclusion contrary to the one which the trial court reached, will the decision be reversed. A.S.C. Corporation v. First Nat. Bank, etc., supra; Souerdike v. State, supra; Pokraka v. lummus Co., 230 Ind. 523, 529, 532, 104 N.E.2d 669 (1952). The same principle applies for evidence to support the giving of instructions.

In Perry v. Goss, Ind., 255 N.E.2d 923, at 925, 20 Ind.Dec. 433, at 435 (1970), Judge Arterburn, speaking for our Supreme Court, defined mandatory instruction as follows:

[148 Ind.App. 419] '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.' (Emphasis supplied.)

Appellees' Instruction No. 5, as modified, does not recite certain facts upon which the jury is directed to reach a certain result and is, therefore, not mandatory.

Appellant contends that it was reversible error to give appellees' Instruction No. 5, as modified, because the issue of contributory negligence was not raised in the pleadings or at trial. Acts 1959, ch. 63, § 1, p. 130, Ind.Stat.Anno., § 2--1025, Burns' 1967 Repl., 1 the provision applicable to the instant case, states, in part, as follows:

'Contributory negligence, on the part of the plaintiff, or such other person, shall be a matter of defense, and such defense may be proved under the answer of denial and affirmance and without specifically alleging such contributory negligence in a separate paragraph of answer: * * *.'

Appellees denied the allegations of negligence in their answer. Thus, we must look to the evidence, and all reasonable inferences that may be drawn therefrom, in a light most favorable to appellees and if there is any evidence of contributory negligence the instruction in question was proper.

The record before us reveals testimony that the speed of the vehicle being operated by Janice Rae Echterling was 15 to 20 miles per hour, or 30 to 40 miles per hour, at the time of the first impact. At the time of the first collision the vehicle operated by Mrs. Echterling was approximately

Page 202

200 feet north of Appellee-Transport's tractor-trailer on U.S. Highway 41, and that some time elapsed between the first and second collision. There is testimony that the deceased did not turn to the left or right, or attempt to stop, and that the brake lights did not come on. While such testimony is not conclusive, it does entitle appellees to an instruction [148 Ind.App. 420] on contributory negligence. Therefore, the giving of Instruction No. 5, as modified, was not reversible error.

Appellees' Instruction No. 4 is as follows:

'The defendants have raised...

To continue reading

Request your trial