Colaw v. Nicholson, 1-482A97

• Decision Date: 28 June 1983
• Docket Number: No. 1-482A97,1-482A97
• Citation: 450 N.E.2d 1023
• Parties: Pamela COLAW, Administratrix of the Estate of William R. Colaw, Deceased, Plaintiff-Appellant, v. Jeannia L. NICHOLSON, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 1023

450 N.E.2d 1023

Pamela COLAW, Administratrix of the Estate of William R Colaw, Deceased, Plaintiff-Appellant, v. Jeannia L. NICHOLSON, Defendant-Appellee.

No. 1-482A97.

Court of Appeals of Indiana First District.

June 28, 1983.

David V. Scott, Rebecca G. Looney, Scott & Looney, New Albany, David W. Paugh, Montgomery, Elsner & Pardieck, Seymour, for plaintiff-appellant.

Trent Thompson, Mead, Mead & Thompson, Salem, for defendant-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

Plaintiff-appellant Pamela Colaw, Administratrix of the Estate of William R. Colaw, Deceased, appeals an adverse jury verdict in the Jackson Circuit Court in her suit for the wrongful death of her husband decedent against defendant-appellee Jeannia L. Nicholson.

We reverse.

STATEMENT OF THE FACTS

At 11:00 p.m. on January 13, 1979, the decedent Colaw was a passenger in a vehicle driven by Carl Stewart on Highway 60, a two-lane state highway. The Stewart vehicle was traveling west toward Salem when it met a vehicle traveling east driven by Jackson Warren. Upon approach, the Stewart vehicle swerved back and forth across the center line before a head-on collision occurred between the cars in the eastbound lane. The Warren vehicle came to rest in the eastbound lane and the Stewart vehicle came to rest in the westbound lane, separated by some distance. Stewart and Colaw had been thrown from their vehicle by the impact and Stewart's body was lying across the eastbound lane and Colaw's body was lying across the westbound lane. Both bodies were between the wrecked vehicles about 25 feet apart.

Shortly thereafter, perhaps no more than two or three minutes later, Nicholson, traveling in the eastbound lane towards the scene, saw Jackson Warren walking in the middle of the road. Nicholson swerved into the westbound lane to miss Warren and ran over Colaw. Colaw was taken to the Clark County Hospital still alive, but expired shortly thereafter. The cause of death was multiple injuries and shock. A pathologist, Dr. Frances Masser, testified that the injuries were crush injuries. She found a number The trial court, over objection, permitted evidence which showed Colaw's blood alcohol content to be .25, and Stewart's to be .165, both well over the level of prima facie intoxication. There was also evidence that after being run over by Nicholson's vehicle, Colaw could only groan and move his hand.

of skeletal fractures consisting of rib and pelvic fractures, a broken left humerous, a broken nose, and a dislocated left shoulder; and internal injuries consisting of lacerations of the liver and kidneys, and multiple lung injuries. Dr. Masser further testified that the chest injuries probably resulted from the first collision and being thrown from the car; whereas, the pelvic injuries resulted from being run over. This latter opinion was attributed to the presence of tire tracks across the decedent's body. The doctor testified that the injury received in the second impact contributed to Colaw's death, and reduced his likelihood of survival. The doctor could not say with any reasonable degree of medical certainty that the injuries sustained by Colaw as a result of being run over were the cause of death, and that the injuries caused when Colaw was thrown from the car were not the cause of death. Rather, Dr. Masser was of the opinion that being run over had contributed to Colaw's death; that the pelvic fractures by themselves would not have been fatal.

Colaw's complaint proceeded on the theory that Nicholson was negligent in failing to exercise reasonable care in driving into what she knew or should have known was the scene of an automobile wreck. Nicholson filed an answer in denial, and in the pretrial entry added the affirmative defense of contributory negligence.

ISSUES

I. Whether the trial court erred in overruling plaintiff's motion in limine and in permitting the introduction, over plaintiff's counsel's objection, of evidence concerning blood-alcohol level; concerning how much alcohol a person weighing 220 to 230 lbs. with a blood-alcohol level of .25% might have consumed; and further concerning the effect of a .25% blood-alcohol level on a person's reactions and mobility, for the reasons that these matters were irrelevant to the issues presented.

II. Whether the trial court erred in permitting a police officer to testify as an expert on interpreting blood alcohol content.

III. Whether the trial court erred in giving, over plaintiff's counsel's objection, defendant's Instruction No. 2 on the issue of intoxication.

IV. Whether the trial court erred in giving, over plaintiff's counsel's objection, defendant's Instruction No. 4 on the issue of incurred risk.

V. Whether the trial court erred in giving over plaintiff's counsel's objection, defendant's Instruction No. 1 on the issue of sudden emergency.

VI. Whether the trial court erred in giving, over plaintiff's counsel's objection, defendant's Instruction No. 6 dealing with the requirement that medical testimony be based on a reasonable degree of medical certainty.

DISCUSSION AND DECISION

Issue I. Intoxication

Since we reverse we will discuss only Issues 1, 3, 4 and 6. Issues 1, 3 and 4 concern intoxication and we will discuss them together. Though we find no error here, we discuss these issues to provide guidance for the trial court in the retrial. The trial court, over objection, admitted evidence of Colaw's intoxication of .25 and Stewart's intoxication of .165. Colaw's objection was based on relevancy, in that as a result of the first collision Colaw was left lying helpless in the highway and was no different than any sober person who was injured and helpless. Further, Stewart's intoxication cannot be imputed to Colaw. Nicholson argues that the evidence indicates that although Colaw had received what ultimately proved to be fatal injuries as a result of his being thrown from his vehicle into the highway pavement, he was conscious even after being run over by the Nicholson vehicle and actually grabbed at a person's pants leg. Nicholson contends that Colaw's extremely high level of intoxication contributed to his inability to extricate himself from the highway after having been thrown from the vehicle. To provide background for this discussion, some generalizations are in order.

Absent agency, joint venture, right of control, or some recognized unity of interest, the negligence of the operator of a motor vehicle is not imputed to his passenger. Dominguez v. Gallmeyer, (1980) Ind.App., 402 N.E.2d 1295; Leuck v. Goetz, (1972) 151 Ind.App. 528, 280 N.E.2d 847; Baltimore & Ohio Railroad Co. v. Patrick, (1960) 131 Ind.App. 105, 166 N.E.2d 654. Here there was no evidence which would suggest imputed negligence.

A passenger in an automobile is bound to use the reasonable and ordinary care of a prudent person under the circumstances to avoid injury to himself. Tuttle v. Reid, (1966) 247 Ind. 375, 216 N.E.2d 34; Le Clerc v. Dover, (1975) 163 Ind.App. 87, 322 N.E.2d 101. For intoxication to be actionable in negligence it must have been the proximate cause of the injury. Buddenberg v. Morgan, (1941) 110 Ind.App. 609, 38 N.E.2d 287. Intoxication of a passenger is no excuse for failure to exercise that degree of care for his own safety that a reasonable, prudent man would have exercised under the same or like circumstances. He is held to use the same degree of care as a sober person. However, the intoxication of a passenger does not in and of itself constitute contributory negligence which will preclude recovery for injuries sustained unless such condition was a proximate cause of the accident. Blashfield Automobile Law and Practice, Vol. 5, Sec. 215.22.

Colaw seems to argue that any prior negligence of Stewart or contributory negligence of decedent terminated with the first collision and, therefore, the evidence of intoxication was irrelevant for the purpose of the second impact. We characterize this argument as an assertion that the second collision was an intervening and superseding force; that the first wreck was a mere condition, and the prior negligence would not defeat recovery. Colaw does not flush out this argument.

The problem was stated in 7A Am.Jur.2d Automobiles Sec. 436, as follows:

"In a situation where one defendant was charged with negligence causing collision or other accident, leaving one or more vehicles standing on the highway, and a subsequently approaching vehicle collided with one or both of those involved in the original collision, it has frequently been held, under a variety of evidence as to the physical circumstances and time intervals involved, that the original negligence could be found to continue as a proximate cause of the injury or damage caused by the second. Some cases holding that negligence causing one accident could properly be found a proximate cause of injury immediately caused by a second accident involving a subsequently approaching vehicle have concerned a situation where the injured person was standing or lying in or near the road as a result of the first accident.

In a number of other cases the courts have indicated that negligence causing one accident could not be found to have continued as an effective legal cause of injuries received when a subsequently approaching vehicle collided with a vehicle in or near the road as a result of the first accident. Similarly, other cases have held that negligence causing one motor vehicle accident could not be regarded as a proximate cause of injury to one standing or walking and lying in or near the road when struck by a subsequently approaching vehicle." (Footnotes omitted.)

See also 58 A.L.R.2d 270 et seq.

Indiana's approach to the problem has been seemingly inconsistent. In Swanson v. Slagal, Administratrix, (1937) 212 Ind. 394, 8 N.E.2d 993, the cause of action was predicated upon (1) negligence of defendant in causing a wreck of his motor vehicle on a bridge, and (2) failing to give proper...