City of Indianapolis v. Swanson

• Decision Date: 29 June 1982
• Docket Number: No. 2-1179A336,2-1179A336
• Citation: 436 N.E.2d 1179
• Parties: CITY OF INDIANAPOLIS, Appellant-Defendant, v. Richard L. SWANSON, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1179

436 N.E.2d 1179

CITY OF INDIANAPOLIS, Appellant-Defendant, v. Richard L. SWANSON, Appellee-Plaintiff.

No. 2-1179A336.

Court of Appeals of Indiana.

June 29, 1982.

Sheila S. Suess, John P. Ryan, Corp. Counsels, City of Indianapolis, David F. McNamar, Michael R. Franceschini, Steers, Sullivan McNamar & Rogers, Indianapolis, for appellant-defendant.

C. Warren Holland, Roy Tabor, Wilson, Tabor & Holland, Charles G. Reeder, Johnson & Weaver, Indianapolis, for appellee-plaintiff.

CONOVER, Judge.

The City of Indianapolis appeals the verdict of a Marion Circuit Court jury finding the City negligent in signing a curve on Sargent Road. The jury awarded the plaintiff, Richard Swanson, $185,000 to compensate him for injuries suffered in a one-car automobile accident as a result of the City's negligence.

The City contends certain of the trial court's evidentiary rulings were contrary to law and an abuse of discretion. The City also challenges the propriety of some of the court's jury instructions.

We find no error by the trial court and accordingly affirm.

SUMMARY OF FACTS

During the early morning hours of May 25, 1975, Richard Swanson and his passenger, Anita Karto, were traveling in an automobile along Sargent Road in a suburban area of Indianapolis. Although the weather was clear and dry, it was dark and Swanson was unfamiliar with the roadway.

As Swanson approached a curve he saw a left-reverse-curve sign warning of a curve Swanson sued the City of Indianapolis for damages to compensate him for his injuries, alleging the city was negligent in not properly signing and marking the road. The jury awarded him $185,000 and the City appeals.

to the left and then back to the right. When Swanson turned, his car left the pavement, traveled through a fence and struck a tree. Swanson's head hit the steering wheel, and, as a consequence, he suffers from grand mal epileptic seizures, depression and a personality disorder.

ISSUES

The City cites the following issues for review:

1. Did the trial court commit reversible error by allowing evidence of subsequent remedial measures?

2. Did the trial court improperly allow the deposition of a witness to be read at trial?

3. Did the trial court improperly allow into evidence a memorandum prepared in anticipation of trial?

4. Did the trial court commit reversible error by advising the jury of the purposes for which they might consider evidence of subsequent remedial measures?

5. Did the trial court abuse its discretion in limiting the scope of the City's cross-examination of the plaintiff?

6. Did the trial court abuse its discretion in refusing to permit two of the City's witnesses to testify?

7. Did the trial court commit prejudicial error in admitting into evidence a thoroughfare plan of Marion County over objections the exhibit had not been authenticated?

8. Did some of the trial court's instructions to the jury misstate the law and mislead the jury?

9. Did the trial court abuse its discretion in refusing two of the City's tendered jury instructions?

10. Was the defendant denied fundamental due process and a fair trial because the jury was made aware of remedial measures taken by the City after the accident?

DISCUSSION

I. Subsequent Remedial Measures

It has long been the law in Indiana that evidence of remedial measures is not admissible to prove the defendant's negligence. Sievers v. Peters Box and Lumber Co., (1898) 151 Ind. 642, 50 N.E. 877, rehearing denied 151 Ind. 642, 52 N.E. 399; Board of Commissioners of Wabash County v. Pearson, (1891) 129 Ind. 456, 28 N.E. 1120; City of Goshen v. England, (1889) 119 Ind. 368, 21 N.E. 977; Dudley Sports Co. v. Schmitt, (1972) 151 Ind.App. 217, 279 N.E.2d 266.

However, various exceptions to the exclusionary rule have developed. Thus evidence of subsequent remedial measures, while not admissible to prove antecedent negligence, has been admitted to prove defendant's control or ownership, City of Lafayette v. Weaver, (1883) 92 Ind. 477; Town of Argos v. Harley, (1943) 114 Ind.App. 290, 49 N.E.2d 552; to prove the possibility or feasibility of preventive measures when properly in issue, Indianapolis & St. Louis R.R. Co. v. Horst, (1876) 93 U.S. 291, 23 L.Ed. 898; Toledo, Wabash and Western R.R. Co. v. Owen, (1873) 43 Ind. 405; Hickey v. Kansas City Southern R.R. Co., (Mo.1956) 290 S.W.2d 58; to prove a faulty condition, later remedied, was the cause of the injury by showing that after the change the injurious effect disappeared, Kentucky Utilities Co. v. White Star Coal Co., (1923) 244 Ky. 759, 52 S.W.2d 705; and to contradict facts testified to by the adversary's witness, i.e., impeachment, Kenny v. Southeastern Pennsylvania Transport, (3rd Cir. 1978) 581 F.2d 351; Daggett v. A.T. & S.F. R. Co., (1957) 48 Cal.2d 655, 313 P.2d 557; Brazil Block Coal Co. v. Gibson, (1903) 160 Ind. 319, 66 N.E. 882.

Because of the inherently prejudicial nature of the evidence, these exceptions are invoked infrequently and with care. We are accordingly sensitive to efforts by a plaintiff to introduce evidence of subsequent remedies if they are not in issue or the defense has not opened a door justifying an exception.

Pursuant to Ind.Rules of Procedure, Trial Rule 32(A)(2), ¹ Swanson, during his case in chief, introduced the depositions of James Cox, Indianapolis Chief Traffic Engineer, and Glyn Tabor, Section Chief of the sign department. The City objected to those two depositions because 1) Cox testified about subsequent remedial measures by the City and 2) Tabor was not authorized to speak for a party and was not an officer, director or managing agent of the City.

Of particular concern to the City was that these two depositions revealed the City replaced the left-to-right curve sign at the accident scene with a right-to-left reverse turn sign and relocated it to the north of the original sign site.

However, any error in Swanson's use of subsequent remedial measures was waived by the City's introduction later of the same evidence during its case in chief. It is well settled that error in admitting evidence at the trial is not available on appeal where the complaining party submits evidence similar in its import to that which was alleged to be improper. State v. Monninger, (1962) 243 Ind. 174, 182 N.E.2d 426; Leuck v. Goetz, (1972) 151 Ind.App. 528, 280 N.E.2d 847. Although it had steadfastly objected to evidence by Swanson of subsequent remedial measures, the City covered the same ground on direct examination when it asked Cox to give his opinion about the adequacy of the original sign.

"Q. And how did you interpret the manual (Indiana Manual on Uniform Traffic Control Devices) as to what particular signs could be utilized to mark curves on that particular road on May 25, 1975?

"A. ... (O)ur interpretation and conclusion was that the use of the reverse turn sign ... was more appropriate ... and (we) relocated (it) in order to show the two sharp turns as opposed to the sign that was ... there on the date of the accident, which showed it was a reverse curve sign. The reverse curve sign to us indicated that, in fact, the road did curve or bend first to the left and then the curve of the road bent back to the right, and in our analysis of the physical features of that roadway that the first curve to the left was not of sufficient severity or sharpness to merit the curve connotation that the other two curves farther to the south did merit the turn and the warning to the motorist."

In addition, Cox suggested the original sign, although defective, had not been moved to a better location because of the foliage.

"Q Now with respect to that (original) sign and the placement of that sign, is that sign too close to the road given the criteria in the Indiana Highway Manual?

"A Yes it is.

"Q And are there any other defects with respect to its placement given the criteria of the manual?

"A It is mounted too low or there is insufficient distance between the bottom of the sign and the edge of the pavement.

"Q Are there any other possible-

"A Physically? Physical locations?

"(Q) ... Yes sir.

"A Perhaps the sign should have been located farther toward the north in order to have been more in advance in this turn-change in alignment, but then the foliage ... would have probably prohibited that because the foliage would have blocked the sign."

On cross-examination, Swanson produced evidence of a post-accident sign inventory indicating again the new sign was placed north of the curve, despite the foliage and despite any assertion such a move was not feasible. We find no error in such a use of remedial measures where feasibility is questioned by the defendant. Moreover, in light of Cox's testimony for the defense, we find any error in the premature admission of evidence of subsequent remedial measures to have been waived.

II. The Tabor Deposition

The City challenges the introduction of the deposition of Section Chief Tabor because it also presented evidence of subsequent remedial measures and because Swanson neither made a showing that Tabor was a managing agent under Ind.Rules of Procedure, Trial Rule 30(A)(2) nor that he was unavailable for trial. Without such a showing, the City contends, admission of the deposition was improper and prejudicial.

The test to determine whether a person serves as a managing agent for deposition purposes is not his title, but the function performed in furtherance of the party's activities and interests. Only if the person has general powers to exercise his judgment and discretion dealing with corporate matters may he be deemed a managing agent. Scott County School District I v. Asher, (1974) 160 Ind.App. 299, 303, 312 N.E.2d 131, 135.

In Asher, we found a shop teacher who was responsible for determining the type of saw to be purchased for his shop class as well as the safety features to be included was a managing agent of a school for purposes of T.R. 32(A)(2) in a suit by a student injured in class.

...