383 N.E.2d 357 (Ind.App. 2 Dist. 1978), 2-1275A357, P-M Gas & Wash Co., Inc. v. Smith

• Docket Nº: 2-1275A357.
• Citation: 383 N.E.2d 357, 178 Ind.App. 457
• Party Name: P-M GAS & WASH COMPANY, INC., An Indiana Corporation, Appellant and Cross-Appellee (Defendant below), v. Ronald SMITH b/n/f Clara Smith and Richard Smith, Appellees and Cross-Appellants (Plaintiffs below).
• Case Date: December 07, 1978
• Court: Court of Appeals of Indiana

Page 357

383 N.E.2d 357 (Ind.App. 2 Dist. 1978)

178 Ind.App. 457

P-M GAS & WASH COMPANY, INC., An Indiana Corporation,

Appellant and Cross-Appellee (Defendant below),

v.

Ronald SMITH b/n/f Clara Smith and Richard Smith, Appellees

and Cross-Appellants (Plaintiffs below).

No. 2-1275A357.

Court of Appeals of Indiana, Second District.

December 7, 1978

Page 358

[178 Ind.App. 458] James J. Stewart, Richard S. Ewing, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for appellant and cross-appellee.

Daniel F. Cummings, Marcus C. Emery, Cummings & Emery, Indianapolis, for appellees and cross-appellants.

SULLIVAN, Judge.

This is a premises liability case in which Ronald Smith, by next friends Clara and Richard Smith, sought damages from P-M Gas & Wash Company, Inc. (P-M) for injuries allegedly sustained when the ten-year-old child's foot was caught in P-M's car wash conveyor mechanism. The jury returned a verdict in P-M's favor, but the trial court granted Smith's Motion to Correct Errors and order a new trial. P-M appealed this ruling and Smith cross-appealed. This court sustained P-M's motion to dismiss the cross-appeal for failure to comply with Ind.Rules of Procedure, Trial Rule 59(D). P-M Gas & Wash Co., Inc. v. Smith (2d Dist. 1976) Ind.App., 352 N.E.2d 91. That decision was reversed by the Supreme Court and the case remanded to this court with directions to determine the cross-appeal on its merits. P-M Gas & Wash Co., Inc. v. Smith (1978) Ind., 375 N.E.2d 592.

The trial judge ordered a new trial because his instruction regarding P-M's standard of care was erroneous. The instruction stated:

"Custom in a trade or business establishes the standard of care for those engaged in such trade or business, and one cannot be held negligent for failure to do more than the fair average of those engaged in similar trade or business."

It can hardly be supposed that "custom in a trade or business [178 Ind.App. 459] Establishes the standard of care for those engaged in such trade or business." (Emphasis supplied). Indeed, there is but one standard of care in negligence cases that of reasonable care under the circumstances. While custom is evidence which may be considered by the trier of fact in determining what is or is not negligent conduct, Booher v. Alhom, Inc. (1st Dist. 1973) 156 Ind.App. 192, 295 N.E.2d 841, 849, we have noted that care should be taken to distinguish between the evidentiary use of custom and its use to establish a standard of care. Walters v. Kellam & Foley (2d Dist. 1977) Ind.App., 360 N.E.2d 199, 214. In Walters we quoted an oft-cited statement by Justice Holmes in Texas & Pacific Ry. Co. v. Behymer (1903) 189 U.S. 468, 23 S.Ct. 622, 623, 47 L.Ed. 905:

" 'What is usually done may be evidence of what ought to be done, but what ought to be done is fixed...