Doctor v. Fort Wayne Nat. Bank, 867

Decision Date02 July 1968
Docket NumberNo. 867,No. 1,867,1
PartiesBeryl DOCTOR, Appellant, v. FORT WAYNE NATIONAL BANK, Administrator of the Estate of Maria Doctor, Deceased, Appellee. A 50
CourtIndiana Appellate Court

Parry, Krueckeberg & Lee, Fort Wayne, for appellant.

J. A. Bruggeman, Fort Wayne, for appellee.

FAULCONER, Judge.

Appellee brought an action for damages against appellant for the wrongful death of appellee's decedent. Judgment was duly entered for appellee on the verdict of a jury. The subsequent overruling of appellant's motion for new trial is assigned as error on this appeal.

One of the specifications of appellant's motion for new trial is the giving of plaintiff's Instruction No. 11 over defendant's objection. Said Instruction No. 11 and appellant's objections thereto read as follows:

Appellee's Instruction No. 11

'In order for the plaintiff to recover it is not necessary that it prove all of the acts of negligence stated in its complaint, but it must prove by a fair preponderance of the evidence at least one of such acts of negligence. Therefore, if you find that the defendant, was negligent in any of the particulars described in the complaint, to-wit:

(a) Said stairs were improperly lighted in that there was an unprotected bulb shining directly in the face of the decedent as she descended the stairs.

(b) Said stairs had carpeting tacked on the four levels closest to the top while those levels below were plain, thus creating a confusing change of surface, which fact was well known to the defendant.

(allegation (c) was omitted from the in struction at trial)

(d) At the time the decedent started to descend the stairs she was carrying a platter of food, which occupied both her hands, and such fact was known to defendant, who failed to warn her of said stairs.

If any one of these said acts of negligence was the proximate cause of the accident, and you further find that Maria Doctor, the decedent did not contribute to the cause of the accident, then you should find for the plaintiff.'

Appellant's Objections

'The defendant objects to the Plaintiff's tendered Instruction No. 11 for the reason it is mandatory in form and omits the element of assumption of risk and contributory negligence as matters for the consideration of the jury. Further, there is no evidence that the steps were slippery by reason of being painted. Furthermore, the instruction does not specifically require proximate cause to be supported by pfoof, and/or to be based upon a finding of proof that one of the acts of negligence was the proximate cause of the occurrence. It doesn't require negligence to be active but allows passive negligence to be considered sufficient for recovery.'

It is well settled this state that where a mandatory instruction is given by the court which purports to set forth in enumeration of the facts which, if found, would entitle a plaintiff or a defendant to a verdict, the instruction will be deemed erroneous if it fails to include in such enumeration one or more facts or elements that are essential for such party to prevail. Snow v. Sutton (1961), 241 Ind. 364, 368, 170 N.E.2d 816; King's Indiana Billiard Co. v. Winters (1952), 123 Ind.App. 110, 127, 106 N.W.2d 713 (Transfer denied); Redd v. Indianapolis Railways (1951), 121 Ind.App. 472, 475, 97 N.E.2d 501 (Transferdenied).

Plaintiff's Instruction No, 11 was a mandatory instruction, as it directed the jury to return a verdict for the plaintiff if they found certain enumerated facts to exist. Vance v. Wells (1959), 129 Ind.App. 659, 667, 159 N.E.2d 586; Harper v. James (1965), 246 Ind. 131, 134, 203 N.E.2d 531. Therefore the giving of said instruction was erroneous if it did not contain all of the facts or elements necessary to plaintiff's right...

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1 cases
  • Fort Wayne Nat. Bank v. Doctor, 1269A247
    • United States
    • Court of Appeals of Indiana
    • 13 d1 Setembro d1 1971
    ...Beryl objected to certain instructions given to the jury. In the previous appeal to this court, reported as Doctor v. Fort Wayne National Bank (1968), 143 Ind.App. 69, 238 N.E.2d 289, we reversed on the sole grounds of the presence of a mandatory instruction prejudicial to Mother Beryl. The......

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