Bates v. Boughton, 571A94
| Decision Date | 10 February 1972 |
| Docket Number | No. 571A94,571A94 |
| Parties | Christine BATES, Plaintiff-Appellant, v. Leo BOUGHTON, Defendant-Appellee. |
| Court | Indiana Appellate Court |
Patrick J. Hadler and John C. Christ, Indianapolis, for plaintiff-appellant.
John R. Hiner and Grace M. Curry, Indianapolis, for defendant-appellee.
Plaintiff-appellant while a pedestrian crossing within the marked crosswalk from the southeast to the northeast corner of Ohio Street where it intersects with Capitol Avenue in Indianapolis was struck by a car driven by defendant-appellee traveling west on Ohio. Plaintiff sought damages for her injuries in a negligence action against defendant. During the jury trial of the case it appeared from the testimony of some witnesses that plaintiff-pedestrian was crossing the street against a red light and had stepped into the path of defendant's automobile from in front of a bus. At the conclusion of the trial a verdict was returned for defendant.
Plaintiff-appellant's sole contention of error on appeal is the trial court's refusal to give her tendered instruction No. 2, which reads as follows:
'I instruct you that when the driver of a vehicle observes another person in a position of peril and if, by the exercise of reasonable care and diligence, he could avoid an injury to the person, then the driver's failure to exercise such care and diligence would constitute negligence for which said driver is responsible even though the person injured was also negligent, provided the driver's negligence and not that of the injured person was the proximate cause of the injury.'
This specification of error presents two questions: 1) Is the instruction a proper statement of the doctrine of last clear chance? 2) Does the evidence warrant such an instruction? Del-Mar Garage, Inc. v. Boden (1932), 95 Ind.App. 317, 323, 179 N.E. 729. Unless both questions can be answered in the affirmative the trial court's refusal to give the instruction was not error. Since we affirm on a holding that plaintiff-appellant's instruction was an incorrect or misleading statement of the last clear chance doctrine we do not answer the second question.
As this court noted in Lewis v. Mackley (1951), 122 Ind.App. 247, 253, 99 N.E.2d 442, 445:
'The proper application of the doctrine of 'last clear chance' does not permit an injured person to recover is spite of negligence on his part contributing to the injury, but it does permit a recovery notwithstanding a want of due care on the part of the plaintiff in cases where the facts are such that it may be said that plaintiff's want of due care was not the proximate cause of the injury . . ..' (Emphasis added.) See, also, Woodrow v. Woodrow (1961), 131 Ind.App. 523, 532, 172 N.E.2d 883.
In National City Lines v. Hurst (1969), Ind.App., 250 N.E.2d 507, 510, 18 Ind.Dec. 420, 423, (quoting Bayne v. Turner (1968), 142 Ind.App. 580, 236 N.E.2d 503, 506), we said:
In that case we approved the giving of an instruction which states the essential elements of the doctrine of last clear chance thus:
'First: Both plaintiff and defendant are negligent;
'Second: Plaintiff is in a position of peril from which he cannot extricate himself;
'Third: Thereafter, the defendant discovers or becomes aware of the plaintiff's position of actual or imminent peril, and has the time and means to avoid the injury or damage but negligently fails to exercise ordinary care to do so; and
'Fourth: The defendant's failure to do so proximately results in injury to the plaintiff.' 1
The foregoing quotations demonstrate the variation in language which may be used to state the elements of the doctrine. But however stated
'it is apparent that, in order to hold a defendant liable by the application of the rule, it must appear from the evidence that such defendant's opportunity of preventing the injury was later in point of time than that of the plaintiff, and that such defendant failed to take advantage of the last clear chance. The rule has been most frequently applied to a class of cases in which it appears that the person or property of the plaintiff has been injured by a collision with a locomotive, car, street car, automobile, or other agency under control of the defendant or his agents; but other cases may arise in which the rule may find a proper application. The rule cannot be applied to every case in which it appears that an injury has been inflicted on the plaintiff or his property by a collision with an agency under the control of the defendant, but only in such of those cases as are brought within the operation of the rule by the facts disclosed by the evidence. Where the evidence in the case tends to show that the situation of the parties just prior to the injury was such that the defendant, by the exercise of due care, could have prevented it, and that the plaintiff could not, then the rule becomes applicable. If, however, the undisputed evidence shows that the opportunity of the plaintiff to avoid the injury was as late or later than that of the defendant, the rule can have no application,...
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