Cartwright v. Harris

• Decision Date: 04 March 1980
• Docket Number: No. 2-877-A-327,2-877-A-327
• Parties: Ethel CARTWRIGHT, Executrix of the Estate of Leonard Cartwright, Deceased, Plaintiff-Appellant, v. Lorin G. HARRIS, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 1192

400 N.E.2d 1192

Ethel CARTWRIGHT, Executrix of the Estate of Leonard Cartwright, Deceased, Plaintiff-Appellant, v. Lorin G. HARRIS, Defendant-Appellee.

No. 2-877-A-327.

Court of Appeals of Indiana, Fourth District.

March 4, 1980.

George Clyde Gray, Leo L. Kriner, Indianapolis, for plaintiff-appellant.

William M. Osborn, and Thomas J. McKeon, Osborn & Hiner, Indianapolis, for defendant-appellee.

MILLER, Presiding Judge.

This appeal is brought by the plaintiff, Ethel Cartwright, the executrix of the Estate of her husband, Leonard Cartwright. The Estate brought an action against defendant Lorin Harris claiming damages for the wrongful death of Leonard Cartwright resulting from an automobile accident. The jury returned a verdict in favor of Harris. The Estate now appeals, claiming the trial court erred in refusing to give three of its tendered instructions concerning (1) a driver's right to assume other drivers will obey the law and exercise due and reasonable care, (2) the doctrine of sudden emergency or peril and (3) the doctrine of last clear chance.

We affirm.

The accident in question occurred in Indianapolis at approximately 5:00 A.M. on November 17, 1973 when Cartwright's Volkswagon struck the rear of Harris' car. Harris testified he was heading westbound on Interstate 465 South, a six lane dual highway, when he began experiencing car trouble which limited his speed to approximately 10 to 20 miles per hour. He claimed both his car lights and turn signal were on and his car was being driven partially on the berm and partially on the outside lane at the time of the accident. Further, his car had a reflectorized license plate. He acknowledged he had been without sleep for approximately 21 hours and had consumed eight beers in the seven or eight hours prior to the collision. Finally, he testified there was no traffic in the westbound lane within one-half mile when the collision occurred; and, at about the moment of impact, he saw what he believed to have been the decedent's headlights.

Other testimony revealed the decedent's Volkswagon struck the left rear of Harris' car leaving ten feet of skid marks after the site of impact. A deputy sheriff who appeared at the scene shortly after the accident testified the road was straight and very dry, and although it was dark at the time, the decedent should have had an unobstructed view of the highway for a half mile before the accident. When the deputy arrived, the lights of both cars were off. The Estate presented evidence that, some three years later, its expert examined the remains of the rear lights of Harris' car (then located in a junkyard) and concluded the lights, assuming they were the same lights that were in the car at the time of the accident, were not turned on at the time of impact.

The highway had posted maximum and minimum speeds of 65 and 45 miles per hour when the accident occurred.

I. Tendered Instruction Number 4.

The Estate claims the trial court improperly refused the following instruction:

"Mr. Cartwright had a right to assume that the defendant would exercise due care in the defendant's conduct toward him, until Mr. Cartwright had notice to the contrary. Mr. Cartwright was not required to anticipate the negligence of the defendant, if any."

The Estate first maintains this instruction is a correct statement of the law. See, 21 I.L.E. Negligence § 83 (1959). Second, it claims correctly that evidence was introduced indicating Harris was driving below the posted minimum speed limit, partially in Cartwright's lane of travel and without lights or an operating turn signal.

It is the trial court's duty to instruct the jury so it can fairly understand the law as it should be applied to the facts of the case. Ind. Rules of Procedure, Trial Rule 51(B); Lovely v. Keele, (1975) 166 Ind.App. 106, 333 N.E.2d 866. However, if an instruction could mislead or confuse the jury, it is not error for the court to refuse it. Brewer v. State, (1969) 253 Ind. 154, 252 N.E.2d 429; Arnold v. Parry, (1977) Ind.App., 363 N.E.2d 1055. Further, an instruction may be misleading if it is one-sided. See, White v. Beem, (1881) 80 Ind. 239; Kroger Company v. Haun, (1978) Ind.App., 379 N.E.2d 1004.

When the case was presented to the jury for final determination, it became its duty to determine the possibility of both the negligence of Harris and the contributory negligence of Cartwright. We recognize the well-settled rule that every motorist on the highway has the right to assume other drivers are exercising due care and obeying the law. Sims v. Huntington, (1979) Ind., 393 N.E.2d 135. However, we must take into account that contributory negligence is determined and governed by the same standards, tests and rules as those for determining the negligence of the defendant. Kroger Company v. Haun, supra. Thus, although each party is entitled to a jury instruction upon his theory of the case, Indianapolis Horse Patrol, Inc. v. Ward, (1966) 247 Ind. 579, 217 N.E.2d 626, we believe the jury in this case, in interpreting the principle enunciated in the tendered instruction, mistakenly could have concluded that only Cartwright and not Harris had the right to assume other drivers on the highway were operating their vehicles without culpable inattentiveness and in obeyance of the laws of the road.

It is our opinion under the facts of this case that the assumption set forth in the tendered instruction was applicable to the determination of Harris' negligence as well as that of Cartwright and, therefore, the tendered instruction was properly refused as being misleading. ¹

II. Tendered Instruction Number 5.

The Estate argues the trial court erroneously refused the following instruction:

If you find that Mr. Cartwright was placed in a position of danger by the negligent act of the defendant and that this position of peril required Mr. Cartwright to take immediate and rapid action without time to deliberate as to the better course to pursue, then you should not hold Mr. Cartwright as strictly accountable as one situated under more favorable circumstances. Contributory negligence is not necessarily chargeable to one on his failure to exercise the greatest prudence or best judgment in such a case. All that is required of a person suddenly placed in peril is that he act only with that degree of care which an ordinarily prudent person would exercise under like conditions. (emphasis added)

Harris contends this instruction was properly refused on the basis that it fails to include an essential element, that is, that Cartwright did not create the "position of danger" by his own negligence. We agree. There is no question that such is a required element. Taylor v. Fitzpatrick, (1956) 235 Ind. 238, 132 N.E.2d 919, 924; Board of Commissioners of Delaware County v. Briggs, (1975) Ind.App., 337 N.E.2d 852; Bundy v. Ambulance Indianapolis Dispatch, Inc., (1973) Ind.App., 301 N.E.2d 791. In Taylor, supra, at p. 924 of 132 N.E.2d, the evidentiary requirements necessary to invoke the doctrine of sudden emergency or peril were stated thusly:

(1) That the appearance of danger of peril was so imminent that he had no time for deliberation. Hedgecock v. Orlosky, (1942), supra, 220 Ind. 390, 397, 44 N.E.2d 93;

(2) That the situation relied upon to excuse any failure to exercise legal care was not created by his (appellant's) own negligence. Dunbar v. Demaree, 1936, 102 Ind.App. 585, 601, 2 N.E.2d 1003; Redd v. Indianapolis Railways, 1951, supra, 121 Ind.App. 472, 97 N.E.2d 501;

(3) That his conduct under the circumstances was such as the law requires of an ordinarily prudent man under like or similar circumstances. Gamble v. Lewis, 1949, supra, 227 Ind. 455, 85 N.E.2d 629; Zoludow v. Keeshin Motor Express, 1941, 109 Ind.App. 575, 34 N.E.2d 980.

In Scott v. Krueger, supra, this Court held an instruction on the doctrine must contain, as a necessary element, the fact that the party relying thereon did not create the peril or emergency by his own negligence. This requirement is further defined in 65A C.J.S. Negligence § 123 (1966) as follows:

However, the doctrine applies only where the person claiming the benefit of it is himself without fault, and it may not be invoked where the peril or emergency was caused or contributed to by plaintiff's negligence, or was occasioned by concurrent negligence of the person injured and the defendant.

See: Sentell v. Higby, (1978) 87 Wis.2d 44, 273 N.W.2d 780, 784.

Here, the jury was instructed the doctrine applied if Cartwright was placed in a perilous, emergency situation "by the negligent act of the defendant." No mention was made of the necessary element that the emergency situation was not in any way created by Cartwright's own negligence. We believe the law is clear that, before a party is entitled to the benefits of the sudden emergency doctrine, his conduct must be free from negligence which contributed to the creation of the emergency itself.

Under the facts of this case, due to the circumstances surrounding the collision, it is conceivable the jury could have concluded that a sudden emergency arose, but such was occasioned by the concurrent negligence of Cartwright and Harris. It was therefore essential that an instruction on this doctrine include language indicating Cartwright, the party seeking its protection, had no part in creating the peril. ²

The trial court correctly refused the instruction.

III. Tendered Instruction Number 6.

Finally, the Estate contends the court erroneously refused to give its tendered instruction concerning last clear chance which reads:

INSTRUCTION No. 6

Ordinarily any negligence on the part of the plaintiff which contributes to his own injury, will be a complete defense when he sues a defendant for injuries to his person.

However, there is one exception to this rule known as the Last Clear Chance Doctrine in which the plaintiff's original negligence is excused or is held not to be the proximate cause of ...