Ernst v. Sparacino

• Citation: 380 N.E.2d 1271,177 Ind.App. 610
• Decision Date: 28 September 1978
• Docket Number: No. 3-1176A263,3-1176A263
• Parties: James ERNST and Joyce Ernst, Appellants (Plaintiffs Below), v. Leonard V. SPARACINO, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 1271

380 N.E.2d 1271

177 Ind.App. 610

James ERNST and Joyce Ernst, Appellants (Plaintiffs Below), v. Leonard V. SPARACINO, Appellee (Defendant Below).

No. 3-1176A263.

Court of Appeals of Indiana, Third District.

Sept. 28, 1978.

Albert C. Hand, Hand, Meunich & Rodovich, Hammond, for appellants.

Ronald T. Spangler, David L. Abel, II, Spangler, Jennings, Spangler & Dougherty, Crown Point, for appellee.

STATON, Judge.

An automobile collision occurred when James Ernst was about to turn left at an intersection. His automobile was struck at the rear by Leonard V. Sparacino. James Ernst brought this action for damages. After a jury trial, a verdict was returned for Leonard V. Sparacino. James Ernst brings this appeal from the trial court's judgment on the verdict, and he raises these issues for our review:

(1) Was the verdict contrary to law and unsupported by the evidence?

(2) Did the court err in refusing certain instructions tendered by Ernst?

(3) Did the court err in giving certain instructions tendered by Sparacino?

(4) Did the court err in admitting certain evidence?

(5) Did cumulative errors committed by the trial court prejudice Ernst?

After examining the above issues, we conclude that there were no reversible errors, and we affirm.

I. Contrary to Law

Ernst is appealing from a negative judgment. We cannot consider his argument that the verdict is unsupported by the evidence. Hiatt v. Yergin (1972), 152 Ind.App. 497, 284 N.E.2d 834. The standard of review, when a party appeals a negative judgment, is absolute: only when the evidence is Without conflict and leads to but One conclusion and the fact-finder reached a Contrary conclusion will the decision be disturbed as contrary to law. Columbia Realty Corporation v. Harrelson (1973), 155 Ind.App. 604, 293 N.E.2d 804; Yellow Manufacturing Acceptance Corp. v. Voss (1973), 158 Ind.App. 478, 303 N.E.2d 281; Senst v. Bradley (1971), 150 Ind.App. 113, 275 N.E.2d 573; Shoemaker v. Bowman (1977), Ind.App., 363 N.E.2d 1278; Celanese Coating Company v. Blakemore (1975), Ind.App., 324 N.E.2d 268; Plumley v. Stanelle (1974), 160 Ind.App. 271, 311 N.E.2d 626.

The evidence was conflicting. Ernst was driving south on a two-way street. He maintains that he signalled to make a left turn and had slowed to execute that turn. Sparacino testified that he would have seen a signal had it been used and that he saw no signal. Sparacino had noticed the decreasing speed of Ernst's vehicle and was starting to pass Ernst's vehicle on the left when the collision occurred.

The existence or non-existence of the visible turn signal was crucial to the factual determination of negligence. Since the evidence was in direct conflict, we need not further examine whether only one conclusion was justified. This Court will not weigh evidence or examine reasonable inferences to be drawn from evidence. Ernst has failed to demonstrate that the verdict of the jury was contrary to law.

II. Ernst's Tendered Instructions

Two of Ernst's tendered instructions were refused by the trial court. The instructions related to the doctrine of last clear chance and following too closely. The Indiana Supreme Court has set out a three-part test for ascertaining whether error results from the refusal of a tendered instruction.

"In considering whether any error results from refusal of a tendered instruction we must determine: (1) whether the tendered instruction correctly states the law, Gayer v. State, (1965) 247 Ind. 113, 210 N.E.2d 852; (2) whether there is evidence in the record to support the giving of the instruction, Wathen v. State, (1965) 246 Ind. 245, 204 N.E.2d 526; (3) whether the substance of the tendered instruction is covered by other instructions which are given, Hash v. State, (1972) 258 Ind. 692, 284 N.E.2d 770; New v. State, (1970) 254 Ind. 307, 259 N.E.2d 696; Cockrum v. State, (1968) 250 Ind. 366, 234 N.E.2d 479."

Davis v. State (1976), Ind., 355 N.E.2d 836, 838.

Ernst's Instruction number 8 and Instruction number 9 were refused. Ernst objected to the trial court's refusal of these tendered instructions, but did not present his verbatim objections in the argument section of his appellate brief (as is required by Ind.Rules of Procedure, Appellate Rule 8.3(A)). Sparacino argues that Ernst has thereby waived the issue. We cannot treat the issue as waived because of the combined effect of two recent appellate level judicial decisions.

In a per curiam opinion, the Indiana Supreme Court held that even though an appellate brief fails to set forth the verbatim objections to instructions, substantial compliance with the rule can be achieved via paraphrasing the objection in the argument section of the brief. The Court stated that if the brief "is of sufficient cogency that it can be responded to by appellees without undue hardship or extraordinary expense, . . . dismissal is not warranted on that basis." Dahlberg v. Ogle (1977), Ind., 364 N.E.2d 1174, 1175. Though Dahlberg addressed itself to the dismissal of an appeal, the same rationale is applicable to a waiver analysis.

In addition, the Indiana Court of Appeals has interpreted TR. 51(C) to mean that the tendering of an instruction automatically gives the tendering party an exception if the instruction is refused. State Farm Mut. Auto. Ins. Co. v. Shuman (1977), Ind.App., 370 N.E.2d 941. It is axiomatic that if a party need not explicitly object to the refusal of a tendered instruction, the failure to set out a verbatim objection in a brief would not constitute a waiver. Therefore, we will consider the merits of the instructions issues.

A. Last Clear Chance

Ernst's Instruction number 8 referred to the last clear chance doctrine. That instruction is as follows:

"PLAINTIFFS' INSTRUCTION NO. 8

"Ordinarily any negligence on the part of the plaintiff which contributes to his own injury and/or damages, will be a complete defense when he sues a defendant for injuries and/or damages to his person or property.

"However, there is one exception to this rule known as the Last Clear Chance Doctrine in which the plaintiff's original negligence is excused or is held not to be the proximate cause of the plaintiff's injuries and/or damages. The elements of a situation to which this doctrine applies are:

"First: Both plaintiff and defendant are negligent;

"Second: Plaintiff is in a position of peril from which he cannot extricate himself;

"Third: Thereafter, the defendant discovers or becomes aware of the plaintiff's position of peril, and has the time and means to avoid the injury or damage but negligently fails to exercise ordinary care to do so; and "Fourth: Which failure proximately results in injury and/or damage to plaintiff's person or property.

"If you find from a consideration of all the evidence that these elements have been proved, then the plaintiff's original negligence will not defeat a recovery."

The instruction was properly refused.

First, it does not correctly state the law. Error cannot be predicated on the refusal of a tendered instruction which incorrectly states the law. LaDuron v. State (1973), Ind.App., 299 N.E.2d 227. Judge Hoffman emphasized in National City Lines, Inc. v. Hurst (1969), 145 Ind.App. 278, 250 N.E.2d 507, that "(t)he limits of the (last clear chance) doctrine are narrow, and this is as it should be." The application of the doctrine is limited in scope to those situations evidencing the following set of facts:

"1) The defendant had actual knowledge of the plaintiff; 2) The defendant knew of the plaintiff's perilous position; 3) The defendant had physical control over the instrumentality and had the last opportunity through the exercise of reasonable care to avoid the injury; and 4) The plaintiff was oblivious to his own danger, notwithstanding his own contributory negligence." (Citations omitted.)

National City Lines, Inc. v. Hurst, supra, at 510. Ernst's Instruction number 8 does not refer in any way to element (4), that plaintiff was oblivious to his own danger. And, the instruction as a whole evidences a completely different tenor from that approved in National City Lines, Inc. v Hurst, supra.

We conclude that the instruction was properly refused for a second reason. Evidence was not presented to support the giving of the instruction. Even if we are to presume Ernst's negligence in failing to signal (and Ernst maintained throughout the trial that he Did signal), we are faced with the fact that Ernst recognized his own peril and had at least an equal, if not greater, opportunity to prevent the accident. Ernst testified that on several occasions, "constantly," he looked back in the rearview mirror and saw Sparacino approaching, and he "could tell the gap was closing between" the cars. This statement patently recognizes the fact that Sparacino was not slowing in response to Ernst's indication that he was going to make a turn. Ernst cannot construe the evidence both ways for the same instruction. If he admits his negligence in not signalling, and he knew the gap was closing, then he should have had no expectation that Sparacino would be prepared for a left turn. On the other hand, if Ernst maintains that he did signal, then the crucial requirement of mutual negligence was not met. The trial court was not bound to instruct the jury on a matter which had not been placed in evidence in the case. Martin v. State (1973), 260 Ind. 490, 296 N.E.2d 793.

Ernst's Instruction number 8 was properly refused because the instruction did not correctly state the law, and the necessary factual elements for reliance on the last clear chance doctrine were not presented.

B. Following Too Closely

Ernst tendered Instruction number 9(e) which was refused:

"PLAINTIFFS' INSTRUCTION NO. 9

"You are instructed that at all times complained of in the plaintiffs' complaint there were statutes of the State of Indiana in full force and effect, which provided in part as follows:

(Here Insert)

"If you find from a preponderance of the...