Blankenship v. Huesman

• Decision Date: 16 May 1977
• Docket Number: No. 1--1076A197,1--1076A197
• Parties: Zoe A. BLANKENSHIP, Plaintiff-Appellant, v. Walter A. HUESMAN, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 850

362 N.E.2d 850

173 Ind.App. 98

Zoe A. BLANKENSHIP, Plaintiff-Appellant, v. Walter A. HUESMAN, Defendant-Appellee.

No. 1--1076A197.

Court of Appeals of Indiana, First District.

May 16, 1977.

John R. Hammond, Hammond, Cromer & Jackson, Indianapolis, for plaintiff-appellant.

J. Lee McNeely, McNeely & Sanders, Shelbyville, for defendant-appellee.

ROBERTSON, Chief Judge.

Plaintiff-appellant, Zoe A. Blankenship, appeals from a negative judgment entered on her claim against defendant-appellee, Walter W. Huesman, arising out of an automobile collision. ¹

Blankenship raises the following issues:

(1) Whether the judgment is contrary to the evidence.

(2) Whether the judgment is contrary to law.

(3) Whether the trial court erred in refusing to give certain instructions.

An automobile driven by Blankenship was struck by an automobile driven by Huesman at the intersection of Pike and Jackson Streets in Shelbyville. Traffic on Pike has no traffic signs or signals at this intersection, but traffic on Jackson is controlled by stop signs.

Blankenship was traveling northward on Pike Street at approximately 4:30 p.m. on September 26, 1974. She testified that she saw Huesman's automobile stopped at the stop sign on Jackson Street and saw his automobile coming toward her; she related that she attempted to avoid the collision but was unable to do so. Blankenship stated at trial that she could not remember how fast she was traveling. The investigating police officer testified that Blankenship reported her speed as approximately twenty miles per hour.

Huesman was traveling eastward on Jackson Street. He intended to cross Pike Street and continue on Jackson. Huesman testified that he made a complete stop at the intersection of Pike and Jackson and allowed a pedestrian to cross in front of his automobile. He looked first to the south and then to the north. Because a parked car blocked his view of the street, he pulled approximately one third of the way into the intersection and again looked to the south and to the north. He saw no traffic approaching the intersection on Pike Street. Huesman then drove into the intersection and struck Blankenship's automobile on the driver's side. Huesman testified that he was traveling two or three miles per hour at the time of the collision. The investigating police officer indicated that Huesman reported his speed as ten miles per hour. The officer also testified that he issued no traffic citations as a result of the collision.

Blankenship filed suit against Huesman and alleged that she has suffered personal injuries, lost wages, and medical expenses due to Huesman's negligent acts and omissions. Trial commenced July 19, 1976. On the following day, the jury returned a verdict for Huesman.

First we consider Blankenship's contention that the judgment is contrary to the evidence. Blankenship appeals from a negative judgment. She had the burden of proof at trial. Her allegation that the judgment is contrary to the evidence raises no issue for review. A negative judgment may be attacked only as being contrary to law. Link v. Sun Oil Co. (1974), Ind.App.,312 N.E.2d 126.

Next we consider Blankenship's contention that the judgment is contrary to law. When a judgment is attacked as being contrary to law, this court may neither weigh the evidence nor consider credibility of witnesses. State v. Boyle (1976), Ind.App., 344 N.E.2d 302. We may consider only the evidence most favorable to the judgment and all reasonable inferences to be drawn therefrom. Longabaugh v. Johnson (1975), Ind.App., 321 N.E.2d 865. It is only where the evidence and inferences so considered lead to but one conclusion and the trial court has reached a contrary conclusion that the judgment will be disturbed as being contrary to law. State v. Boyle, supra.

Violation of a duty prescribed by statute is generally negligence as a matter of law. Negligence as a matter of law, however, does not necessarily mean liability as a matter of law. New York Central R.R. v. Glad (1962), 242 Ind. 450, 179 N.E.2d 571. A party may counter this evidence of negligence by showing justification for his noncompliance (i.e., his acts were the acts of a reasonably prudent man under the same circumstances) or by showing that his violation of the statute was not the direct cause of the injuries or damages sustained. Pontious v. Littleton (1970), 146 Ind.App. 369, 255 N.E.2d 684; McCall v. Sisson (1975), Ind.App., 336 N.E.2d 660. Violation of a statutory duty then is only prima facie evidence of negligence, and the jury must resolve the issue. McCall v. Sisson, supra.

Huesman had a statutory duty to stop at the intersection and to yield the right-of-way to vehicles which were approaching so closely on Pike Street as to constitute an immediate hazard. IC 1971, 9--4--1--83(b) (Burns Code Ed.). Blankenship argues that the jury could only have concluded that Huesman either did not look or did look but failed to see an automobile within plain view. We do not agree with her conclusion that the evidence is clear, uncontradicted, and conclusive.

The jury could have concluded that Huesman acted with reasonable and ordinary care. His view was impaired by a parked car when he checked for traffic the first time. He stopped a second time, and again looked for approaching traffic. Even if Huesman's conduct were considered negligent, the jury could have concluded that Blankenship's speed was excessive, under the circumstances, to the extent of constituting contributory negligence.

Summarily, we note also that there was evidence of a pre-existing back condition and a pre-existing urinary tract infection. Medical testimony did not conclusively establish the nature, extent, or permanency of injuries allegedly caused by the collision.

The jury served as the trier of fact. It had the benefit of observing the witnesses and viewing the diagram provided at trial. After considering all the evidence regarding the collision and the alleged injuries, it returned a verdict for Huesman. The evidence does not lead to but one conclusion. We find the judgment is not contrary to law.

Next we consider Blankenship's contention that the trial court committed reversible error when it refused her tendered instructions numbered 1, 2, 3, 4, 5, 7, and 10.

In the argument portion of her brief, Blankenship provides one paragraph in support of each refused instruction. Each such paragraph cites an authority for the principle of law or definition contained in the instruction, or states the purpose of the instruction, or provides both authority and an explanation of purpose. The balance of Blankenship's argument is summarized in the following excerpt from her brief:

'Appellant contends that by reference to the foregoing authority it is clear that the appellant's tendered instructions, which were refused by the Court, were proper, and properly submitted. The Trial Court's refusal to give these instructions deprived the appellant of important aspects of her case. With the jury not being duly advised as to the degree of care and the duty required on the part of the appellee, and as to the accepted meaning of the words and tests which they were to apply to the evidence that had been presented, the appellant was deprived of an intelligent and informed determination of the evidence.

'The jury herein was not fully apprised as to the standards that were to be applied, and their decision could have been affected significantly by this ignorance.' (Emphasis added.)

Blankenship fails to address the fact that at least five and perhaps all seven of the tendered instructions to which she refers were refused because the trial court determined that their content was covered by other instructions given. ²

It is incumbent upon Blankenship to do more than merely state principles of law and offer quotations from cited authorities. The contentions made must be applied to the particular facts so that this court may know precisely how Blankenship was harmed by the...