Adkins v. Elvard

• Decision Date: 03 April 1973
• Docket Number: No. 1--872A43,1--872A43
• Citation: 294 N.E.2d 160,35 Ind.Dec. 675,155 Ind.App. 672
• Parties: James L. ADKINS, Plaintiff-Appellant, v. Carol Ann ELVARD, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 160

294 N.E.2d 160

155 Ind.App. 672

James L. ADKINS, Plaintiff-Appellant, v. Carol Ann ELVARD, Defendant-Appellee.

No. 1--872A43.

Court of Appeals of Indiana, First District.

April 3, 1973.

Rehearing Denied May 7, 1973.

Charles S. Gleason, Gleason, Woods & Johnson, Indianapolis, Norman E. Hay, Birchler & Hay, Cannelton, for plaintiff-appellant.

Ralph P. Zoercher, Zoercher, Becker & Huber, Tell City, Paul F. Mason, Rockport, for defendant-appellee.

ROBERTSON, Presiding Judge.

This is a personal injury action brought by James Adkins (plaintiff-appellant), who filed a complaint alleging that he had been seriously injured as the result of being struck by an automobile negligently operated by Carol Elvard (defendant-appellee). Adkins' amended complaint averred that on the evening of December 31, 1968, he was crossing a two lane paved public street in the middle of the block in Cannelton, Indiana, when he was struck by Miss Elvard's car. In her answer, Miss Elvard denied each and every allegation of the complaint and alleged that the injuries complained of by Adkins were caused solely by his own negligence.

A trial by jury resulted in a verdict for Miss Elvard and a finding that Adkins take nothing by his complaint. Following an unsuccessful motion for judgment on the evidence or in lieu thereof a new trial by Adkins, the court sustained Miss Elvard's motion for judgment on the verdict. Adkins thereafter filed a motion to correct errors which was subsequently overruled. Adkins' motion sets forth the following specifications of error:

1) The court erred in overruling plaintiff's motion for judgment on the evidence and in sustaining defendant's motion for judgment on the verdict in that the decision was contrary to law, not sustained by the evidence and in violation of plaintiff's constitutional rights to due process and equal protection under the law;

2) the decision is contrary to law in that the court gave defendant's tendered Instructions Nos. 10, 12, 5, 9, and 13 over plaintiff's objection even though the instructions were mandatory and failed to specify all the facts, if found, that would deny plaintiff a verdict;

3) The decision is contrary to law in that over plaintiff's objection the defendant by her attorneys on voir dire, opening statement and closing statement made arguments and statements that demanded that the jury must find for defendant in the advent that the jury found facts which supported the partial statement of law as propounded in defendant's tendered Instructions Nos. 10, 12, 5, 9 and 13;

4) the court abused its discretion in giving all of plaintiff's instructions first and all of defendant's instructions last which gave undue prominence to defendant's instructions so as to mislead the jury.

In his brief counsel for Adkins has attempted on appeal to raise certain additional alleged errors which were not presented to the trial court in the motion to correct errors. Any claimed error not raised in the motion to correct errors before the lower court will be deemed waived on appeal, and therefore, we find it unnecessary to consider the additional errors alleged in Adkins' brief. Trial Rule 59(G), IC 1971, 34--5--1--1. State v. Steinmetz (1971), Ind., 272 N.E.2d 320. Spivey v. State (1971), Ind., 274 N.E.2d 227.

The proper test for determining whether a motion for judgment on the evidence should be granted is the same as that formerly applied to a motion for directed verdict. It is well settled in this state that a motion for judgment on the evidence or a directed verdict should not be granted '. . . if the evidence is such that the minds of reasonable men might differ, or if the determination of negligence depends on conflicting evidence'. Wroblewski v. Grand Trunk Western Ry. Co. (1971), Ind.App., 276 N.E.2d 567, 571. See also: Memorial Hospital of South Bend, Inc. v. Scott (1972), Ind.App., 290 N.E.2d 80; Farmer v. Werner Transp. Co. (1972), Ind.App., 284 N.E.2d 861; Mamula v. Ford Motor Co. (1971), Ind.App., 275 N.E.2d 849.

The partial transcript submitted on appeal in this cause included only the testimony of Miss Elvard and her sister who was a passenger in the car at the time of the accident. That testimony fails to reveal any conclusive evidence of negligence on the part of Miss Elvard, and moreover casts a substantial doubt on Adkins' allegation that he was struck by the Elvard auto and injured as a result thereof. The only evidence in the record which might conceivably support an inference of negligence on the part of Miss Elvard is her admission that she did not give warning by sounding her horn upon observing Adkins in her intended path of travel. Adkins contends that Miss Elvard's failure to sound the horn was in violation of IC 9--4--1--89, Ind.Ann.Stat. § 47--2034 (Burns 1965) and thereby constituted negligence as a matter of law. IC 9--4--1--89 requires that '. . . every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon a roadway and shall give warning by sounding the horn when necessary . . ..' Miss Elvard testified that she did not sound her horn because there was no time to do so, but only to slam on the brakes. We think a jury could reasonably infer that Miss Elvard did not violate the statute because it was not necessary for her to sound the horn where to do so would not serve as an effectual warning due to the shortness of time. Furthermore, even if Miss Elvard did violate a duty imposed upon her by the statute, such a violation would constitute prima facie evidence of negligence. Boswell v. Washington (1966), 140 Ind.App. 273, 221 N.E.2d 184, which in the light of rebutting evidence or evidence of a valid defense would not compel a verdict for Adkins.

In his brief Adkins has alluded to the testimony of certain independent witnesses which he elected not to make a part of her record on appeal. Even if the benefit of the doubt is afforded Adkins and it is assumed that such evidence was in conflict with that included in the record, we would be unable under the appropriate test, as heretofore set out, to find that the court erred in overruling the motion for judgment on the evidence. Accordingly, we must conclude that the court's ruling on Adkins' motion was not contrary to law nor was it unsupported by the evidence. As to Adkins' allegation that the ruling violated his constitutional rights of due process and equal protection, we are unable to find any argument, other than the bare assertion itself, in Adkins' brief in support of this claim, and therefore the issue must be deemed waived. Appellate Rule 8.3(A)(7).

Error is next claimed on the giving of defendant's Instructions Nos. 2, 3, 5, 9, 10, 12 and 13. Instructions Nos. 2 and 3 will not be considered since no allegation of error based on these instructions was raised in Adkins' motion to correct errors. The basis of Adkins' objections to the giving of defendant's Instructions Nos. 5, 10 and 12, was that each instruction omitted any reference to the doctrine of last clear chance which Adkins alleged to be an issue in this cause. While we are not altogether convinced that last clear chance is applicable to this case, we nonetheless find that any alleged error predicated upon such an omission was cured by the giving of plaintiff's Instruction No. 9, which fully instructed the jury on the doctrine of last clear chance. In deciding whether an instruction is erroneous we must view the instruction as a whole with all of the other instructions to determine if the party claiming error has been prejudiced. Cato Enterprises, Inc. v. Fine (1971), Ind.App., 271 N.E.2d 146; Merriman v. Kraft (1969), 253 Ind. 58, 249 N.E.2d 485.

In his brief Adkins makes the additional argument that defendant's Instruction No. 5 is mandatory and as such it is defective in...