Chase v. Settles

• Citation: 265 N.E.2d 57,148 Ind.App. 259
• Decision Date: 23 December 1970
• Docket Number: No. 869A141,No. 1,869A141,1
• Parties: Lloyd G. CHASE, Appellant, v. Virgil C. SETTLES and Maurice Settles, Appellees
• Court: Indiana Appellate Court

Page 57

265 N.E.2d 57

148 Ind.App. 259

Lloyd G. CHASE, Appellant, v. Virgil C. SETTLES and Maurice Settles, Appellees.

No. 869A141.

Appellate Court of Indiana, Division No. 1.

Dec. 23, 1970.

Dissenting Opinion on Denial of Rehearing Jan. 21, 1971.

See 266 N.E.2d 220 H. Harold Soshnick, Charles T. Bate, Shelbyville, Soshnick, Brenton & Bate, Shelbyville, of counsel, for appellant.

Wilbur F. Pell, Jr., Shelbyville, Pell & Matchett, Shelbyville, of counsel, for appellees.

SULLIVAN, Judge.

Plaintiff-appellant is before us asserting as error in the trial of a personal injury action involving a farm tractor operated by defendant-appellee, Maurice Settles, and a station wagon only that the trial court erred in giving two instructions.

The questioned instructions are as follows:

DEFENDANTS' INSTRUCTION NO. 7

'The question of reasonable care with respect to both Lloyd G. Chase and Maurice Settles depends wholly upon the situation before and at the time of the accident, and not upon anything known or discovered afterwards which could not with reasonable diligence have been known or discovered before the occurrence of the accident. In other words, in consideration of the evidence, you should put yourself in the position of the drivers of the vehicles at the time of the occurrence, and have in mind what each knew or ought to have known in the exercise of reasonable care at that time.'

DEFENDANTS' INSTRUCTION NO. 9

'You are instructed that the duty imposed upon the defendant, Maurice Settles, did not require him to use every possible precaution to avoid being collided with by the automobile driven by Lloyd G. Chase; nor that the defendant should have employed any particulars means, which it may appear after the accident, would have avoided the same; nor was the said defendant required to make accidents impossible. The defendant was only required to use such precaution to prevent an accident and consequent injury as would have been adopted by ordinarily prudent persons under the circumstances as they appeared immediately prior to the accident. The question for you to determine from the evidence is not whether the accident and injuries of the plaintiff, if any, might have been avoided if the said defendants had anticipated its occurrence, but whether taking all of the circumstances as they existed just before or at the time of the accident, the defendants were negligent in failing to anticipate and guard against the accident.'

As may be observed from consideration of said instructions, a statement of the facts involved in this cause would only serve to unnecessarily lengthen this opinion as well as the published official and unofficial reports of this court, thereby imposing an unwarranted burden upon the time and financial resources of the practicing bar of Indiana. In this regard, we are particularly mindful of the cost per volume of the legal decision reports which are indispensable to any working law library and of the many pages in each such volume devoted to verbiage which is unessential to the holding of the particular case, e.g., the unessential verbiage contained in this paragraph of this opinion.

Appellant argues herein that defendants-appellees' Instruction No. 7 given by the court disregards the applicable principle governing the conduct of the respective drivers in that the instruction implies that such conduct is governed by the subjective viewpoint of the jurors rather than by the standard of reasonable care. To be sure, the instruction, by use of the words 'put yourself in the position of the drivers', invites objection and is not a model instruction. It is, however, not erroneous.

Defendants' Instruction No. 7 does not tell the jury to judge the drivers' conduct by what the juror would have done had the juror been a driver. Rather, it correctly says that the application of the reasonable man test must be made in the light of what the drivers knew or should have known at and prior to the occurrence and not by what may have subsequently seemed to be a wiser course of conduct. In other words, the reasonable man test is properly to be applied under the circumstances as they existed--not in a vacuum or in a state of Utopian perfection. It is applied in the light of the circumstances which confronted the drivers at the time and in the place where the accident took place and prior thereto. Defendants' Instruction No. 7 says nothing more or less than this.

Defendants' Instruction No. 9 is not unrelated to the subject matter embraced within Defendants' Instruction No. 7. It is, however, restricted to the standard by which the defendant-appellee Maurice Settles' conduct is to be judged.

Appellant objected to the instruction upon the ground that 'if the exercise of reasonable care would have required Maurice Settles to have used every precaution to avoid the accident, or, if the exercise of reasonable care would have required said defendant to have employed a particular means, which appears afterwards would have avoided the accident, and if by the exercise of reasonable care the said defendant would have been required to make accidents impossible, then he would have been required to do so.' According to appellant, this instruction, in effect, tells the jury that there may be circumstances which would justify the defendant Maurice Settles in failing to exercise ordinary care. Appellant argues that the jury as a matter of fact and not the court as a matter of law should have been permitted to determine what acts constituted reasonable care and relies upon Rump v. Woods (1912), 50 Ind.App. 347, at page 355, 98 N.E. 369, at page 372, wherein the court said:

'* * * It was for the jury in this case to say just how much care in respect to looking and listening should have been used by appellee in crossing his particular street in view of the conditions disclosed by the evidence. It would have been error for the court to say as a matter of law that ordinary care required appellee to look and listen constantly,...