Brock v. Walton
| Citation | 456 N.E.2d 1087 |
| Decision Date | 14 December 1983 |
| Docket Number | No. 2-382A79,2-382A79 |
| Parties | Shelvy BROCK and Carol Brock, Appellants (Plaintiffs Below), v. E. Spencer WALTON, Special Administrator of the Estate of Phyllis J. Shearer, Appellee (Defendant Below). |
| Court | Indiana Appellate Court |
Russell H. Hart, Stephen E. Yeager, Stuart, Branigin, Ricks & Schilling, Lafayette, for appellants.
Tom F. Hirschauer, Logansport, for appellee.
Shelvy and Carol Brock, plaintiffs in a negligence suit against defendant, E. Spencer Walton, as special administrator of the estate of Phyllis J. Shearer, challenge the judgment on a jury verdict for the defendant as not supported by sufficient evidence and as contrary to law. 1 We reverse and remand for a new trial.
The evidence revealed that on July 21, 1978, at about 3:00 p.m., Shelvy Brock (Brock) and his son Derrick, were traveling southbound in a 1977 Chevrolet Suburban on Indiana State Highway 25. State Police Officer Sabatini testified that Highway 25 is a flat two-lane blacktop road divided by a broken white line and that July 21 was a clear, sunny day allowing visibility of about one mile in either direction.
Brock was following his friend, Dean Dorton, who was driving a Chevrolet "wrap around" van, at a speed of about 50 to 55 miles per hour. The posted speed limit was 55 miles per hour.
Northbound on the same road was John Fithian. From 50 to 100 feet behind, Fithian was following decedent Phyllis Shearer's car, a 1978 Ford coupe. Fithian stated that he had "picked up" the Ford shortly after Delphi and had been following decedent's car for approximately 15 miles. He observed that decedent drove at a rate which fluctuated from 40 to 60 miles per hour. As they approached Logansport, the speed of decedent's car fluctuated more frequently. Fithian also noticed decedent's car cross both the center line and the shoulder line. He estimated that during the 15 miles she had crossed the center line at least 5 times with her left wheels, but the rest of her car still remained in the northbound lane.
Dean Dorton (Dorton) testified that he first saw Mrs. Shearer's vehicle when it was approximately 100 to 200 feet away from his van. Both Fithian and Dorton testified that at this time decedent's entire car swerved across the center line and headed towards Dorton's van, forcing him to swerve right towards the west berm and onto a grassy area. He glanced at his rearview mirror in time to see the head-on collision between Shearer's car and Brock's van. Officer Sabatini confirmed that the collision occurred on the "extreme" west berm of the southbound lane, that Brock's van was approximately 5 to 6 feet off the road, with both left wheels still on the pavement. Skid marks of approximately 62 feet made by Brock's van started from the center of his lane at an angle towards the west berm. Decedent's car was estimated to have been traveling at 55 miles per hour up to the point of impact, and left no skid marks on the road.
Fithian testified that shortly before the collision, Shearer's car abruptly returned to the northbound lane after it had headed straight towards Dorton's van. He also testified that Dorton's van swerved to the right at about the same time that Shearer's car swerved back to the northbound lane. The following is an excerpt from his testimony:
"Q. When she swerved over was the majority or all or how much of her car went over into the left lane?
A. The majority of her car.
Q. What did you observe that vehicle, the one that went to the ditch, tell me about that. What did you see that vehicle do?
A. All I saw it do was dart off to the right side off the road as quickly as it could to avoid her car.
Q. After that what did the Mrs. Shearer's vehicle, the Ford, do?
A. It came abruptly back into the right lane.
Q. All right. Behind the vehicle that had to take to the ditch, is that where the Suburban was?
A. Yes.
Q. When did you first see the Suburban?
A. I must have seen the Suburban as soon as she swerved back into the right lane. Because that was the time when the left lane was open for me to see it. Because the other car was obviously in the ditch and she was in the right lane.
Q. All right. In other words ...
A. I saw at least by that time.
Q. In other words, she swerved over and the first vehicle took to the side of the road. She swerved back and that's your first recollection of seeing the Suburban?
A. Yes.
Q. Do you have any idea what your distance was from the Suburban at that time?
A. My distance couldn't have been any more than a hundred (100) yards or a hundred-fifty (150) yards from the ...
Q. From the Suburban?
A. From the Suburban.
Q. When you first saw the Suburban are you able to tell us its speed? Do you have any idea what speed it was traveling?
A. No. It's almost impossible to tell what speed a car is traveling when it is coming towards you.
Q. Would you, please, describe what you saw from the time you first saw the Suburban until the point of impact of the accident?
A. After the Ford came back into the right lane, she only stayed in the right lane for a few seconds and then went back again fully into the left lane and hit the Suburban head-on. The Suburban, as I said earlier, must have been following closely behind the other vehicle that had gone into the ditch. Not because I could perceive that they were right behind each other but because of the time span that elapsed between the time she went over in the left lane, forced the first car into the ditch, came back stayed there only a few seconds and then went over again and hit the Suburban head-on.
Q. And, are you able to tell us how far, how much distance was actually between the vehicle in front of the Suburban and the Suburban?
A. I'm only able to estimate that it had to have been fifty (50) or a hundred (100) yards (sic), if it was a normal following distance.
Q. You indicated that they had to be close because of the amount of time. Are you able to tell us the amount of time or estimate the amount of time from the time Mrs. Shearer pulled back into her lane to the right lane and then crossed over toward the Brock vehicle?
A. Only a few seconds." Record at 405-407 (Emphasis supplied). 2
The jury returned a verdict for Derrick Brock who joined in the negligence suit as a plaintiff, but returned a verdict against Shelvy and Carol Brock. The parties agree that in reaching this verdict, the jury must have found decedent negligent but also necessarily found Shelvy Brock (Brock) guilty of contributory negligence. Defendant directs our attention to the following testimony of Shelvy Brock which, it is claimed, conclusively shows that Brock failed to maintain a proper lookout. During direct examination of Brock, the following exchange took place:
"Q. At some point prior to this accident do you recall seeing Mrs. Shearer's vehicle, the vehicle with which you were involved in an accident?
A. No.
Q. Let me ask you, Shelvy, what your last memory up to the time of impact?
A. Well, the last thing I remember, I seen a car coming towards me....
Q. When you saw a car coming towards you, where was that car in relation to you?
A. It was on my side of the road. Right in front of me.
Q. Do you have any memory of that car before then?
A. No.
Q. Do you have any memory of other traffic before then? Either Dorton's vehicle or any other cars, Mr. Fithian anybody?
A. No.
Q. After you saw that car coming toward you, do you have any further memory at all?
However, during cross-examination, defendant's attorney elicited this testimony:
A. No.
Q. Now, there's been some evidence in this case that Mr. Dorton, your friend, was traveling ahead of you and that he left the road and went over into the grassy area. Did you see Mr. Dorton's car leave the road and go over into the grass area?
A. Not as I remember, no.
Q. Well, I didn't ask you that. Did you or did you not see the car?
A. No." Record at 477 (Emphasis supplied).
At the outset it is necessary to ascertain and apply the appropriate standard of review. Appellee argues that appellants as plaintiffs attack a negative judgment and therefore reversal is warranted only if the judgment is contrary to law. Appellants counter that such a limited scope of review is inapplicable because the negative judgment standard applies only where a party appeals a judgment on which he had the burden of proof. Kroger v. Haun (2d Dist.1978) 177 Ind.App. 403, 379 N.E.2d 1004, 1007. It was defendant-appellee who had the burden to prove the defense of plaintiff Brock's contributory negligence (Ind.Rules of Procedure, Trial Rule 9.1(A)), and, therefore, appellants are entitled to a review not only as to whether the verdict is contrary to law, but also as to the sufficiency of the evidence to sustain the jury's verdict.
Contributory negligence is determined and governed by the same standards, tests, and rules as those for determining the negligence of the defendant. Cartwright v. Harris (4th Dist.1980) Ind.App., 400 N.E.2d 1192, 1194. It is defined as "the failure of a person to exercise for his own safety that degree of care and caution which an ordinary reasonable and prudent person in a similar situation would exercise." Kroger Co. v. Haun (2nd Dist.1978) 177 Ind.App. 403, 379 N.E.2d 1004. Before such negligence will be held to bar recovery, it must be contributory. That is, it must...
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