Board of Com'rs of Miami County v. Klepinger

• Decision Date: 15 September 1971
• Docket Number: No. 2,No. 370A35,370A35,2
• Citation: 27 Ind.Dec. 8,149 Ind.App. 377,273 N.E.2d 109
• Court: Indiana Appellate Court
• Parties: BOARD OF COMMISSIONERS OF MIAMI COUNTY et al., Appellants, Defendants Below, v. Shirley KLEPINGER, Appellee, Plaintiff Below

Page 109

273 N.E.2d 109

149 Ind.App. 377

BOARD OF COMMISSIONERS OF MIAMI COUNTY et al., Appellants Defendants Below, v. Shirley KLEPINGER, Appellee, Plaintiff Below.

No. 370A35.

Appellate Court of Indiana, Division No. 2.

Sept. 15, 1971.

Russel J. Wildman, James A. Grund, Peru, for appellants.

J. Conrad Maugans, Bayliff, Harrigan, Cord & Maugans, Kokomo, for appellee.

STATON, Judge.

This is an appeal from the Fulton Circuit Court. A verdict was returned by the jury for the plaintiff-appellee and against the defendant-appellee for Twenty Thousand Dollars ($20,000.00).

The plaintiff-appellee and her husband were returning home from a visit with relatives on Easter Sunday, April 10, 1966 at approximately 6:30 P.M., when the automobile being driven by the plaintiff-appellee's husband, on Strawtown Pike in Miami County went into an open trench approximately five (5) inches deep upon a bridge. Plaintiff-appellee suffered injuries to her back.

On Thursday before the accident happened, appellant-defendant had learned that a hole had developed in a small portion of the bridge floor and commenced repairs on Friday. The bridge was a single lane bridge 130 feet long and only 16 feet in width and the repairs to be made were near the south end of the bridge. In making these repairs, the top five or six inches of the flooring was removed across the entire width of the bridge. This removal left a trench five or six inches below the top of the flooring not being repaired, and some five to eight feet wide measuring from north to south. Across this trench, appellant-defendant had placed treadway planks for automobiles to cross over the trench and avoid driving into the trench. The top of these planks were level with that portion of the traveled surface of the bridge which had not been removed. Each plank was twenty-four inches in width and so spaced that the wheels of an automobile would be in the center of the planks, if the automobile was driven across the bridge on the treadway planks.

The plaintiff-appellee has made a motion that the appeal be dismissed or affirmed for the reason that the defendant-appellant included in his appeal transcript only a motion for a new trial. Under the new Indiana Rules of Procedure, Rule 7.2(A), a motion to correct errors or an assignment of errors is required. This court feels that it should be guided by Trial Rule 84 which provides as follows:

'These rules will take effect on January 1, 1970. They govern all proceedings in actions brought after they take effect and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible or would work injustice, in which event the former procedure applies.'

We are of the opinion that to sustain the plaintiff-appellee's motion would work a manifest injustice. The new rule came into effect after the defendant-appellant had filed a motion for a new trial in strict compliance with the old rules.

Appellant-defendant cites as error the giving of appellee-plaintiff's Instruction Number Eight, which is as follows:

PLAINTIFF'S INSTRUCTION NO. 8

'There was in force a statute of the State of Indiana, which provided in pertinent part as follows: 'Whenever, in the opinion of any board or county commissioners, the use of any public county highway or highways shall be or will become impracticable or unsafe because of obstructions or interruptions resulting from erosion, changes in natural or artificial drains, or any other cause of any kind or nature whatsoever, the said board of county commissioners of the county wherein such highway or highways is located, or the board of county commissioners of adjoining counties acting together, if the obstructed or interrupted part thereof is located upon a county line or extends from one county to another, shall have the power to close said highway or highways or the necessary parts thereof, and divert traffic therefrom by suitable detours, if in their judgment such detours are necessary, until such time as the conditions causing such obstruction or interruption no longer exists and the continued use of said highway or highways become practicable and safe.'

'If you find from a preponderance of the evidence that the defendant violated the statutes on the occasion in question and that the violation was without excuse or justification, such conduct would constitute negligence on the part of the defendant.'

We agree with the appellant-defendant that the giving of the appellee-plaintiff's Instruction Number Eight was error.

The statute embodied in the instruction above is IC 1971, 8--1--23--1, Ind.Ann.Stat., § 36--716 (Burns 1949). A careful examination of this statute shows that its intent is to confer upon the county commissioners the police power 'to close' county highways, when in their opinion and judgment such 'public county highway or highways shall be or will become impracticable or unsafe * * *.' The county commissioners further 'have the power' to leave said highways in a closed or detour condition 'until such time as the conditions causing such obstruction or interruption no longer exists and the continued use of said highway or highways becomes practicable and safe.' The general safety and welfare of the public is secondary or incidental to this statute. The terms and language of the statute is exceedingly general in nature: '* * * (I)n the opinion of any board of county commissioners, the use of any public county highway or highways shall be or will become impracticable or unsafe because of obstructions or interruptions resulting from erosion, changes in natural or artificial drains, or any other cause of any kind or nature whatsoever, * * * the boards of county commissioners * * * shall have the power to close said highway or highways, or the necessary parts thereof, and divert traffic therefrom by suitable detours, if in their judgment such detours are necessary, * * * the continued use of said highway or highways become practicable and safe.' For the purpose of illustration only, we set out a statute pertaining to weeds on county highways, which is found in IC 1971, 8--17--14--1, Ind.Ann.Stat. § 36--714 (Burns 1949). This statute deals with specifics and reads as follows:

'Each and every county highway supervisor and the county surveyor and boards of county commissioners of the counties where the county surveyor is charged by law with the supervision and maintenance of county highways, shall cut down or cause to be cut down, and removed from all county highways, by the highway department of the several counties of the state, all briars, thistles, burrs, tree sprouts, docks, willows, sumac, reeds, cat-tails, tall grass, marihuana, Indian or wild hemp or loco weed, shrubs and all other obnoxious growth within the limits of the county highway rights-of-way between the fifteenth of June and the first day of September in each year.'

This statute not only sets forth the kind of 'obnoxious growth' to be cut but also the times during which said growth should be cut on the rights-of-way.

When we speak of a civil negligence 'violation' in an instruction to a jury, we are speaking of the violation of a specific requirement, specific commission or omission of an act or a single issue of fact. 'Violation' may be addressed to an absolute duty imposed by law or a positive and definite standard of care. These statutory categories are sometimes characterized as showing negligence as a matter of law or negligence per se. (See 28 Words and Phrases, 'Negligence per se', p. 683).

The difference between negligence and negligence per se when it is a question for the jury is the means and method of ascertainment. In Swoboda v. Brown (1935), 129 Ohio St. 512, 196 N.E. 274, this distinction was stated by the court as follows:

'The distinction between negligence and 'negligence per se' is the means and method of ascertainment. The first must be found by the jury from the facts, the conditions, and circumstances disclosed by the evidence; the latter is a violation of a specific requirement of law or ordinance; the only fact for determination by the jury being the commission or omission of the specific act inhibited or required.

Where a specific requirement is made by statute and an absolute duty thereby imposed, no inquiry is to be made whether the defendant acted as a reasonably prudent man, or was in the exercise of ordinary care. In such a situation, the obligation and requirement has been fixed and established by law, and the conduct of any person which is violative of such specific statutory requirement is illegal, and, if it proximately results in injury to one to whom a legal duty is owed, the transgressor is liable for the resulting damage. In such case, the jury is not called upon to determine whether the conduct constituted negligence; it determines only whether the act prohibited was committed or the act required by law was omitted, as the case may be. The violator of such specific requirement of law is liable, irrespective of the question as to whether his act is such as is deemed to meet and satisy the test of ordinary or reasonable care which would be applied in the absence of such statutory definition and imposition of absolute duty, such as, for instance, the absolute and specific requirement as to headlights. Where the standard of duty is thus fixed and absolute, it becomes the same under all circumstances, the failure to observe that requirement is clearly negligence per se. But, where duties are undefined, or defined only in abstract or general terms, leaving to the jury the ascertainment and determination or reasonableness and correctness of acts and conduct under the proven conditions and circumstances, the...