Baller by Baller v. Corle

• Decision Date: 25 March 1986
• Docket Number: No. 2-384-A-78,2-384-A-78
• Parties: Charles BALLER IV, by His Parents, Natural Guardians, and Next Friend, Charles BALLER III and Beverly Baller, and Beverly Baller and Charles Baller III, Appellants (Plaintiffs), v. Curtis W. CORLE; Habig Trucking and Excavating, Inc.; Northern Indiana Public Service Company; Fleming Excavating, Inc.; and City of Bluffton, Appellees (Defendants).
• Court: Indiana Appellate Court

Page 382

490 N.E.2d 382

Charles BALLER IV, by His Parents, Natural Guardians, and Next Friend, Charles BALLER III and Beverly Baller, and Beverly Baller and Charles Baller III, Appellants (Plaintiffs), v. Curtis W. CORLE; Habig Trucking and Excavating, Inc. Northern Indiana Public Service Company; Fleming Excavating, Inc.; and City of Bluffton Appellees (Defendants).

No. 2-384-A-78.

Court of Appeals of Indiana Second District.

March 25, 1986.

Charles R. Clark, Robert C. Beasley, Beasley, Gilkison, Retherford, Buckles and Clark, Muncie, Trent M. Patterson, Gallivan, Hamilton, Hamilton, Seese and Patterson, Bluffton, for appellants (plaintiffs).

William E. Borror, Thomas L. Wooding, Hunt, Suedhoff, Borror and Eilbacher, Fort Wayne, for appellees (defendants), Curtis W. Corle and Habig Trucking and Excavating, Inc.

William P. Wooden, Dale W. Eikenberry, Wooden, McLaughlin and Sterner, Indianapolis, for appellee (defendant), Northern Indiana Public Service Company.

John D. Walda, Ronald J. Ehinger, Barrett, Barrett and McNagny, Fort Wayne, for appellee (defendant), Fleming Excavating, Inc.

Arthur R. Kalleres, Scott A. Smith, Ice, Miller, Donadio and Ryan, Indianapolis, for appellee (defendant), City of Bluffton.

SULLIVAN, Judge.

Plaintiff-appellant Charles Baller IV (Chuck), a seven-year-old, along with his parents Charles Baller III (Chad) and Beverly Baller (Beverly) [hereinafter collectively referred to as the Ballers] acting in their own capacity and as the child's natural guardians and next friend, appeal from the jury verdict in favor of defendants-appellees Curtis Corle (Corle); Habig Trucking and Excavating, Inc. (Habig); the City of Bluffton (City); Northern Indiana Public Service Company (NIPSCO); and Fleming Excavating, Inc. (Fleming) [hereinafter collectively referred to as Defendants].

The Ballers filed suit as a result of severe injuries sustained by Chuck when he was hit by a truck owned by Habig and driven by Corle.

Because we reverse and remand for a new trial, we deem it appropriate to discuss only those issues which are determinative. They deal with instructions given the jury.

The facts of record which bear upon these issues and which are most favorable to the judgment reflect that the accident occurred near 324 West Wiley Avenue in Bluffton on August 25, 1977. The section of West Wiley Avenue where the accident occurred is three lanes wide; the middle and southern lanes carry traffic in opposite directions while the northern lane is normally reserved for parked cars. Wiley Avenue at this point passes through a residential neighborhood and is lined on both sides with sidewalks, each of which is separated from the street by a narrow, grassy strip.

Fleming undertook sewer repair work for the City several weeks prior to the accident. In order to replace existing sewer lines, Fleming excavated a five-foot-wide trench which extended for several blocks down the center of West Wiley Avenue. Fleming then replaced the old sewer line and filled the trench with sand and gravel. Fleming also sprayed this filler material with water, to promote settling, and deposited on top a layer of calcium chloride, a moisture absorbing chemical, in order to limit the production of dust. The latter procedure was necessary because the trench, in order to settle properly, could not be covered with paving material for a two-month period. Ruts which developed were routinely filled and the street was swept every week. At the time of the events in question, the filled trench created by the sewer repair work had not yet been paved.

NIPSCO workers were also engaged in repairing a residential gas line in front of 324 West Wiley Avenue at the time of the accident. In order to conduct the repairs, the workers used a backhoe to dig in the grassy strip between the street and the sidewalk. When not in use, the backhoe remained in the lane normally reserved for east-bound vehicles in front of the residence at 324 West Wiley Avenue.

During the afternoon of August 25, 1977, Corle was driving east on West Wiley Avenue as he returned to a job site after loading his triaxle truck with fill dirt. Slowing the truck to approximately fifteen miles per hour, he approached the construction work being done by NIPSCO employees and observed three children who appeared to be playing approximately forty feet from the street in the front yard of the residence at 324 West Wiley Avenue. Chuck was one of these children and was running from two older children as they chased him with earthworms. At the time in question, Chuck was seven and one-half years old and had been instructed by his parents regarding the dangers associated with crossing the street and the importance of crossing the street only at crosswalks. As he drove, Corle directed the truck into the middle lane in order to avoid the backhoe in the southern lane. As the truck drew even with the backhoe, Chuck suddenly ran from behind the backhoe and into the street. The earliest notice which Corle had of Chuck's actions was when Chuck suddenly appeared immediately in front of the truck. Corle stopped the truck within fifteen feet from the point of initial impact with Chuck. Tragically, Chuck passed under the front, left tire of the truck and came to rest under the first set of rear, dual tires. Chuck suffered great injury and, as a result, his right leg was amputated just below the hip.

I

The trial court gave two instructions to the jury which were erroneous and which occasioned such prejudice under the circumstances as to prompt reversal of the judgment.

Instruction 20 advised the jury that if the seven-year old boy violated two statutes concerning the duty of pedestrians, such conduct would create a presumption of contributory negligence on the part of the child. ¹ Instruction 29 dealt with the doctrine of "alternative paths," and stated that the boy would be held to have incurred the risk of his injury if he chose a course of action which should have been apparent to be more dangerous than a safer available course. ²

Both instructions concern the conduct required of a seven-year old boy to meet the standard of care imposed upon all persons, i.e., reasonable care under the circumstances.

In Indiana, no adverse presumption exists as to a child between seven and fourteen. To the contrary, there is commentary to the effect that a favorable presumption exists as to such child--that he is presumed incapable of negligence, although the presumption may be rebutted. See Smith v. Diamond (1981) 4th Dist.Ind.App., 421 N.E.2d 1172 at 1176-1177. On the other hand, it may be that no presumption, either favorable or adverse, exists with respect to a child over seven. See Smith v. Diamond, supra at 1177, n.5.

In any event, it is correct to say that a child between seven and fourteen is required to exercise due care for his own safety under the circumstances and that the care required is to be measured by that ordinarily exercised under similar circumstances by children of the same age, knowledge, judgment and experience. Bixenman v. Hall (1968) 251 Ind. 527, 242 N.E.2d 837; Johnston v. Brown (1984) 3d Dist.Ind.App., 468 N.E.2d 597; Dibortolo v. Metropolitan School District of Washington Township (1982) 2d Dist.Ind.App., 440 N.E.2d 506.

Bixenman v. Hall, supra, 242 N.E.2d 837, indicates clearly that in the light of the "special consideration" given to children in negligence cases, it is improper to convey an impression to the jury that violation of a statute constitutes negligence. Notwithstanding gratuitous closing dictum referring "in passing" to a "rebuttable presumption," the Bixenman decision stands for the proposition that the violation of a statute by a child must be considered in the light of the "special consideration" and not in the light of any presumption of negligence. ³

Instruction 20 should not have been given to the jury. Use of the word "presumption" was, at best, ill-advised and erroneous. State Farm Mutual Automobile Insurance Company v. Shuman (1977) 1st Dist. 175 Ind.App. 186, 370 N.E.2d 941. To state that there is a "presumption of contributory negligence" on the part of a seven-year old child was particularly inappropriate because it was used in conjunction with a requirement requiring the child to bear the burden of proving his own due care under the circumstances.

Instruction 20 was unnecessary insofar as it sets forth the standard by which the child's conduct is to be measured because in a separate instruction that standard was clearly and correctly stated. That separate instruction fully advised as to contributory negligence without the erroneous and misleading taint of terms like "presumption of contributory negligence" and the burden of proof necessary to overcome such presumption.

That same standard was set forth in yet other instructions which covered the duty of a pedestrian to make reasonable observations for oncoming traffic before crossing a street. In large measure, then, the jury was fully and fairly instructed upon the appropriate subject matter of Instruction 20 by other instructions. This fact renders the erroneous portions of the instruction even more patently prejudicial.

II

The "alternative paths" instruction compounded the prejudicial nature of the "presumption of contributory negligence" instruction. It conveyed to the jury the impression that notwithstanding his age, Chuck was responsible for his own injury if he could have avoided the harassment of the older children without darting into the street. The instruction uses the phrase "incurred risk" as the effect of a choice of the more dangerous alternative. That phrase has a very particularized meaning in the law and the words are words of art which require definition if used in instructions to a jury.

As we held in Kroger Co. v. Haun (1978) 2d Dist., 177 Ind.App. 403, 379 N.E.2d 1004, incurrence of the risk requires actual knowledge of the impending danger. In the context of ...