Anderson v. Pre-Fab Transit Co., Inc.

• Decision Date: 15 September 1980
• Docket Number: PRE-FAB,No. 3-879A234,3-879A234
• Citation: 409 N.E.2d 1157
• Parties: John ANDERSON and Betty Anderson, Appellants-Plaintiffs, v.TRANSIT COMPANY, INC., Charles A. Hunter, and Clyde Gillespie, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 1157

409 N.E.2d 1157

John ANDERSON and Betty Anderson, Appellants-Plaintiffs, v. PRE-FAB TRANSIT COMPANY, INC., Charles A. Hunter, and Clyde Gillespie, Appellees-Defendants.

No. 3-879A234.

Court of Appeals of Indiana, Fourth District.

Sept. 15, 1980.

John C. Grimm, Grimm & Grimm, David A. Kruse, Kruse & Kruse, Auburn, for appellants-plaintiffs.

Edward L. Murphy, Jr., and Richard P. Samek, Livingston, Dildine, Haynie & Yoder, Fort Wayne, for appellees-defendants.

CHIPMAN, Judge.

The appellant, John Anderson, was injured when his truck collided with the truck driven by appellee Charles Hunter. Hunter's truck was owned by appellee Clyde Gillespie and leased to appellee Pre-Fab Transit Company. The case was tried to a jury which found for the appellees and against Mr. Anderson on his complaint and against Mrs. Anderson on her loss of consortium complaint. On appeal the Andersons challenge numerous rulings made by the trial court. We reverse.

The Andersons have raised the following issues:

I. Whether the trial court properly instructed the jury;

II. Whether the trial court abused its discretion in admitting certain testimony of Herman Arnold;

III. Whether the trial court erred in granting a directed verdict in favor of Clyde Gillespie.

The Andersons have also raised other issues but we need not discuss them in light of our decision to reverse. ¹ We will, however, address issues raised that are likely to resurface upon retrial.

FACTS

On the morning of September 15, 1975, Mr. Anderson was heading west on Ley Road in the City of Fort Wayne. His vehicle was struck by the northbound truck driven by Charles Hunter at the intersection of Ley Road and State Road 3. This intersection is controlled by automatic traffic signals. At trial both drivers claimed they had the green light. The right front of Hunter's truck struck the driver's door of Anderson's truck. Both vehicles sustained property damage and Anderson suffered personal injuries and was hospitalized. Hunter was ticketed for disregarding an automatic signal and subsequently pled guilty.

In May of 1977, the Andersons filed suit against the appellees alleging Hunter was negligent in disobeying an automatic signal violating the speed limit, failing to keep a proper lookout, and failing to brake properly, proximately causing their injuries. The appellees denied Hunter was negligent and alleged Mr. Anderson was contributorily negligent.

At the close of the plaintiffs' case, the court granted defendant Gillespie's motion for a directed verdict. The jury later found in favor of the two remaining defendants.

I. JURY INSTRUCTIONS

The appellants challenge several of the final instructions given by the court. The first instruction challenged is Defendant's Instruction No. 7 which reads:

"If, after considering all of the evidence, you find that the accident might have been caused in several different ways other than as alleged by plaintiffs in their complaint or the defendants in their affirmative paragraph of answer, and you cannot determine from the evidence what was the proximate cause of the accident, then there can be no recovery by plaintiffs and you may return a verdict for the defendant."

The appellants objected to this instruction on the grounds it was not an accurate statement of the law concerning negligence, contributory negligence and the burdens of proof involved in the case.

Without addressing the specific objections made by the appellants, the appellees argue an almost identical instruction was approved by the court in Jessop v. Werner Transportation Company, (1970) 147 Ind.App. 408, 261 N.E.2d 598, and the court's ruling in Jessop "is squarely on point" with this case. We disagree.

The court in Jessop held the instruction was a proper statement of the law concerning proximate cause. It did not find the instruction was a correct statement of the law concerning negligence, contributory negligence, and burdens of proof. These latter three issues were not addressed by the Jessop court because they were not raised by the appellant in that case. As a matter of fact, contributory negligence was not even alleged in the Jessop case.

In Jessop the appellant challenged the instruction on the grounds it was a mandatory instruction, a mere accident instruction, and it instructed the jury on matters not in evidence. The court upheld the instruction only as to those challenges.

The "might have" standard is not a correct statement of the burden of proof faced by each party. The appellants had the burden to prove the material allegations of their complaint by a preponderance of the evidence and the defendants had the burden to prove the material allegations of their affirmative defense by the same preponderance of the evidence. Egbert v. Egbert, (1948) 226 Ind. 346, 80 N.E.2d 104. A preponderance of the evidence means the greater weight of the evidence. Great Atlantic & Pacific Tea Co. v. Custin, (1938) 214 Ind. 54, 13 N.E.2d 542, rehearing denied 214 Ind. 54, 14 N.E.2d 538.

This instruction invites the jury to speculate as to the cause of the accident and to find against the plaintiffs even if the plaintiffs have met t heir burden of proof if "the accident might have been caused in several different ways other than as alleged by plaintiffs in their complaint." This instruction is biased in favor of the defendant and is not an accurate statement of the law.

Although the court did properly instruct the jury as to the appellants' burden of proof by giving Plaintiffs' Instruction No. 6, "We have heretofore held that the error in giving an erroneous instruction cannot be cured by the giving of a contradictory instruction correctly stating the law but the harmful effect of such an erroneous instruction can only be removed by its withdrawal." Stephenson v. State, (1963) 244 Ind. 452, 193 N.E.2d 369, 370. See also Hainey v. Zink, (1979) Ind.App., 394 N.E.2d 238.

Appellants also objected to the reading of Court's Instruction No. 13 which reads "You are instructed that it is negligence for a person to fail to see that which he could have seen by the exercise of ordinary and reasonable care. For that reason the law attaches the same legal consequences to a failure to see what was in plain view if, in fact, the person could have seen.

Therefore, if you find that the semi-tractor trailer operated by the Defendant Charles A. Hunter was in plain view of the Plaintiff and approaching so close as to be unable to stop or avoid colliding with the Plaintiff, at the time the Plaintiff drove into the lane of traffic in which said Defendant was travelling, then you may find that the Plaintiff John W. Anderson was negligent.

Likewise, if you find that the lumber truck operated by the Plaintiff John Anderson was in plain view of the Defendant and approaching so close as to be unable to stop or avoid colliding with the Defendant, at the time the Defendant drove into the lane of traffic in which said Plaintiff was travelling, then you may find that the Defendant Charles A. Hunter was negligent."

Their objection argued the instruction did not state the applicable law to be considered under the circumstances since it made no allowance for the effect the automatic traffic signal may have had on either parties' duty. ²

In their brief the appellants argue Stull v. Davidson, (1955) 125 Ind.App. 565, 127 N.E.2d 130, holds "a driver entering an intersection with a favorable green light has no duty, under the test of reasonable care, to anticipate and safeguard against another motorist running or disobeying a red signal on an automatic signal at the intersection." Therefore, they contend the "plain view" instruction was inapplicable in this case.

In response the appellees in their brief first argue that "(a) reading of appellants' objection in the trial court reveals that no ground of error was preserved by their non-specivic (sic) instruction." On the contrary, we feel the objection to the instruction was sufficiently specific to preserve the error. ³

Additionally, the appellees argue this "plain view test has been adopted by Indiana courts as a correct statement of the law," citing Frankfort v. Owens, (1976) Ind.App., 358 N.E.2d 184 in which a substantially similar instruction was approved by the court. The appellees also dispute the appellants' interpretation of Stull and cite Davis v. Dondanville, (1940) 107 Ind.App. 665, 26 N.E.2d 568 as rejecting the appellants' argument.

In resolving this issue, we will first look at the facts involved in this case and then discuss the facts in terms of the relevant case law. It will not be necessary to discuss the "plain view" instruction as it relates to Hunter since it cannot be applicable to him. ⁴

Mr. Anderson's testimony disclosed that he was heading west on Ley Road at approximately 20 miles per hour. There were no obstructions at the intersection which would have blocked his view of Hunter's truck. Anderson saw Hunter's truck approaching the intersection when Anderson was approximately 275 feet from the intersection or about ten seconds before he reached the intersection. When Anderson was approximately 150 feet from the intersection the light turned from red to green. ⁵ As Anderson proceeded to and into the intersection he did not recheck the progress of Hunter's truck since he assumed Hunter would stop for the red light. When he crossed the first lane of State Road 3 he saw Hunter's truck but it was too late to stop.

As stated above, the appellants argue Anderson was contributorily negligent for not observing the cross-traffic at the intersection since

" '(t)he mere fact that one vehicle has the right of way over another vehicle at a street or road intersection, does not relieve the driver of the vehicle thus favored from the duty to exercise reasonable care to avoid collision at such intersection.' " (citations omitted)

Davis v. Dondanville, (1940) 107 Ind.App. 665, 26 N.E.2d 568, 570.

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