346 N.E.2d 607 (Ind.App. 3 Dist. 1976), 3--574A77, Hi-Speed Auto Wash, Inc. v. Simeri

Docket Nº:3--574A77.
Citation:346 N.E.2d 607, 169 Ind.App. 116
Party Name:HI-SPEED AUTO WASH, INC., Defendant-Appellant, v. Patrick SIMERI, Plaintiff-Appellee.
Case Date:May 10, 1976
Court:Court of Appeals of Indiana

Page 607

346 N.E.2d 607 (Ind.App. 3 Dist. 1976)

169 Ind.App. 116

HI-SPEED AUTO WASH, INC., Defendant-Appellant,

v.

Patrick SIMERI, Plaintiff-Appellee.

No. 3--574A77.

Court of Appeals of Indiana, Third District.

May 10, 1976

Page 608

[169 Ind.App. 117] Arthur A. May, Terry V. Lehr, Crumpacker, May, Levy & Searer, South Bend, for appellant.

Charles A. Sweeney, Jr., Roemer, Sweeney, Butler & Simeri, South Bend, for appellee.

GARRARD, Judge.

Appellee Simeri recovered a judgment for personal injury sustained at Hi-Speed's carwash. Hi-Speed's appeal challenges the sufficiency of the evidence to establish negligence. It also asserts that if it was negligent a fortiori, Simeri was contributorily negligent. We find the evidence [169 Ind.App. 118] was sufficient to go to the jury on both questions. Accordingly, we affirm.

The evidence disclosed that Simeri had patronized the carwash on previous occasions. On March 27, 1973, he drove to the carwash to have his automobile washed and cleaned. He drove into the entrance and stopped where a sign indicated. An attendant then opened the doors. As Simeri got out, attendants were waiting to clean the inside of the car.

Simeri walked around to the right side of the car where he noticed that a piece of chrome trim on the right front fender was loosened just forward of the door jamb. He bent down next to the car, pointed to the loose spot with his left index finger, and asked an employee of Hi-Speed, who was standing to Simeri's right and slightly behind him, whether the strip of chrome would be knocked off in the washing process. At this time, another Hi-Speed employee closed the car door, severing the tip of Simeri's finger and causing the injury sued upon.

Both prongs of Hi-Speed's argument rely to some extent upon the concept that under certain circumstances, if the defendant was negligent, the plaintiff must also have been negligent; or conversely, if plaintiff was not contributorily negligent, then defendant's conduct could not have been negligent either. The basis for the concept arises from the fact that the standard of care applied to each is the objective requirement of 'ordinary' or 'reasonable' care under the circumstances. See, e.g., Hunsberger v. Wyman (1966), 247 Ind. 369, 216 N.E.2d 345; Hedgecock v. Orlosky (1942), 220 Ind. 390, 44 N.E.2d 93; and Stallings v. Dick (1965), 139 Ind.App. 118, 210 N.E.2d 82.

Of course, it is proper for counsel to argue that under a given set of facts and because of the requirement that both plaintiff and defendant exercise reasonable care, the jury should determine as a question of fact that either both exercised reasonable care or neither one [169 Ind.App. 119] did. Yet, the simple logic of such an argument must not obscure the issues presented on appeal when the trier of fact concludes otherwise. Our review is limited to determining whether the jury, as a matter of law, could not have arrived at its conclusion upon the evidence presented at trial. As stated more frequently, was there any evidence possessing probative value which, if credited by a jury of reasonable persons, would justify the conclusion reached as reasonable? In this regard, it is to be recalled that the burden of proving negligence is on the plaintiff. Proving contributory negligence rests with the defendant. Accordingly, our review should first determine whether the evidence supports a finding that the defendant was negligent and should then consider the determination that the plaintiff was not contributorily negligent. The latter inquiry includes consideration of whether the plaintiff's conduct was such that as a matter of law it must

Page 609

be considered negligent. In a proper case, this includes a comparison of the defendant's conduct, which the trier of fact must have found to be negligent if it made an award.

In the present case, there is no question that Hi-Speed owed a...

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