Baker v. Mason

• Decision Date: 08 March 1968
• Docket Number: No. 20617,No. 2,20617,2
• Citation: 142 Ind.App. 314,234 N.E.2d 665
• Parties: Roderick H. BAKER, by Robert W. Baker, his next friend, Appellant, v. Diane MASON, Appellee
• Court: Indiana Appellate Court

Page 665

234 N.E.2d 665

142 Ind.App. 314

Roderick H. BAKER, by Robert W. Baker, his next friend, Appellant, v. Diane MASON, Appellee.

No. 20617.

Appellate Court of Indiana, Division No. 2.

March 8, 1968.

Rehearing Denied May 2, 1968.

Hall, Frazier & Crokin, Paul H. Frazier, Indianapolis, for appellant.

Rocap, Rocap, Reese & Robb, John A. Young, Indianapolis, for appellee.

SMITH, Judge.

This action is brought by the plaintiff-appellant, Roderick Baker, by his father and next friend, Robert W. Baker, against the defendant-appellee, Diane Mason, to recover damages for personal injuries sustained by the appellant when he was struck by the appellee's car in the 2800 block of Sherman Drive in Indianapolis, Indiana, on March 31, 1961, at approximately 2:15 P.M.

The pertinent facts are that the appellant, a boy four years of age, was playing near Sherman Drive. The appellant ran into the street somewhere near the intersection of 28th Street and Sherman Drive and was struck by the appellee's car. It was raining and the appellee was traveling at a speed of approximately 25 miles per hour. The appellee stopped immediately. The record discloses that the appellee saw the appellant playing near the street when she was approximately one block away, but did not see the appellant enter the street at the time of the accident. She heard a 'thud', stopped, and then saw the appellant lying in the center of Sherman Drive.

Trial was had by jury, which returned a verdict for the defendant-appellee, and judgment was entered in accordance with the general verdict. The appellant filed a motion for a new trial, which was overruled. The overruling of such motion is now assigned as error by the appellant and forms the basis of this appeal.

The appellant maintains that the appellee was negligent in failing to keep a proper lookout, and in failing to slow down when she first saw the appellant because the operator of a motor vehicle is bound to anticipate the presence of children in the street and has a duty to exercise reasonable care in looking out for them. The appellant cited in support of his position the case of Mays v. Welsh (1941), 218 Ind. 356, 32 N.E.2d 701.

The appellant claims that the most serious error committed by the trial court was the giving of appellee's Instruction No. 6 pertaining to the 'sudden peril' doctrine. The appellant argues that the evidence shows that the appellee first saw the appellant when she was a block away, but did not see him at any time immediately prior to the accident. Thus, the appellee was not even aware that an emergency existed until after the impact.

Instruction No. 6 reads as follows:

'You are instructed that there a person is confronted with a sudden emergency, without sufficient time to determine with certainty the best course to pursue, she is not held to the same accuracy of judgment as would be required of her if she had time for deliberation. Accordingly, if she exercises such care as an ordinarily prudent person would exercise when confronted by a like emergency, she is not liable for an injury which resulted from her conduct, even though another course of conduct would have been more judicious or safer or might even have avoided the injury.

'So, in this case if you find that the defendant, Diane Mason, was faced or confronted with a sudden emergency, not of her own doing and that thereafter the said Diane Mason pursued a course of conduct that an ordinarily reasonable prudent person would pursue or follow when confronted by the same emergency, and the collision resulted therefrom, then the defendant, Diane Mason, would not be liable to plaintiff, even though you believe that another course of action or conduct than what the defendant pursued when confronted with the said sudden emergency would have been more judicious, safer or might even have avoided the accident.'

The appellant maintains that the whole doctrine of suddent peril has to do with the judgment one exercises in an emergency, and if one is unaware of such emergency and exercises no judgment, there is no room for the application of the doctrine. 21 ILE, Negligence, § 8, Page 272, and cases cited therein.

Appellant also argues that the court erred in refusing to give appellant's Instruction No. 18:

'If you find by a fair preponderance of the evidence that the Defendant knew of the presence of Roderick along the street where this accident happened, then I instruct you that the law recognizes that the Defendant should have exercised a degree of care commensurate with the propensities of children and should have used due care to avoid casuing them injury.'

And appellant maintains that he was prejudiced by the giving of appellee's Instruction No. 27:

'If you find that plaintiff suddenly and without warning ran from the sidewalk into the traveled part of Sherman Drive and into defendant's automobile, and the defendant did not see or know of the presence of plaintiff at said point and could not have seen or known of his presence at said point in the exercise of ordinary care in sufficient time to have avoided said plaintiff's injuries in the exercise of ordinary care, then your verdict...