Dreibelbis v. Bennett, 3--873A114

Citation162 Ind.App. 414, 319 N.E.2d 634
Case DateDecember 12, 1974
CourtCourt of Appeals of Indiana

Frederick H. Link, Thomas F. Lewis, Jr., South Bend, for appellant.

Donald R. Myers, William T. Means, Mishawaka, for appellee.

STATON, Judge.

Dallas Bennett received personal injuries while he was directing traffic at the scene of a property damage accident. He received a jury verdict of $15,000.00 against John Dreibelbis who brings this appeal.

Dallas Bennett came upon two vehicles which had been involved in a property damage accident at U.S. 33 and Cedar Road in St. Joseph County. It was about 9:00 o'clock at night and drizzling rain. He stopped to see if anyone was injured and to render whatever assistance appeared necessary. One of the vehicles involved in the accident, a paneled truck driven by John Dreibelbis, was partially blocking the eastbound traffic lane on U.S. 33 while the second vehicle, a passenger car driven by Ted Titus, completely blocked the westbound traffic lane. John Dreibelbis, the driver of the paneled truck, left the scene to call the police without placing any warning flares on the road as required by IC.1971, 9--8--6--42 (Burns Code Ed.). There was enough room on U.S. 33 for one lane of traffic to pass between the two damaged vehicles. Bennett placed one flare in front of Dreibelbis's truck and a second flare approximately twenty feet west of the truck in the middle of the highway before he began directing traffic alternately from the east and west between the two damaged vehicles. An eastbound vehicle ran over and extinguished the flare west of the truck. When Bennett bent over to rekindle the extinguished flare, he was struck from the rear by a vehicle that had swerved to avoid Dreibelbis's truck. 1

Bennett brought this action against Dreibelbis which is prefaced upon Dreibelbis's negligence in failing to place flares on the road after the accident as prescribed by I.C.1971, 9--8--6--42 (Burns Code Ed.). Dreibelbis's Motion to Correct Errors sets forth these issues for our review:

1. Was Bennett acting as a volunteer when he was injured?

2. Was Bennett within the class of persons protected by I.C.1971, 9--8--6--42?

3. Was Dreibelbis's violation of the statutory flare requirements the proximate cause of Bennett's injuries?

4. Was Bennett guilty of contributory negligence as a matter of law?

From our review of these issues, we conclude that (1) Bennett was not a volunteer; (2) Bennett was within the class protected by I.C.1971, 9--8--6--42, supra; (3) there was sufficient evidence presented for the jury to determine the factual question of proximate cause; and (4) Bennett was not contributorily negligent as a matter of law. We affirm the trial court's judgment rendered upon the jury's verdict.

I. Volunteer

Dreibelbis contends that Bennett was a 'volunteer' when he was injured by the Fedders' car. Admittedly, Bennett was under no legal duty to stop at the scene of the Dreibelbis-Titus accident and render his assistance. He was a volunteer in the ordinary sense of the word. However, Dreibelbis seeks to go beyond this common, lay volunteer concept. He seeks a legal volunteer concept which would limit his liability to acts of willful and wanton misconduct. To support this legal concept, Dreibelbis relies upon case law from Indiana and other jurisdictions which he contends have applied this more stringent standard of care. We find little to support Dreibelbis's position. Dreibelbis relies on Indiana authority which deals with the duty owed by occupiers of land to voluntary entrants. See Thompson v. Owen (1966), 141 Ind.App. 190, 218 N.E.2d 351; Standard Oil Co. of Indiana, Inc. v. Scoville (1961), 132 Ind.App. 521, 175 N.E.2d 711. Also, in Daugherty v. Hunt (1941), 110 Ind.App. 264, 38 N.E.2d 250, relied on by Dreibelbis, the Court applied a standard of ordinary care to the owner of an automobile with a known defect. Similarly, the case law relied upon by Dreibelbis from foreign jurisdictions is either limited to occupiers' liability or distinguishable on other grounds. See Western Truck Lines v. DuVaull (1941), 57 Ariz. 199, 112 P.2d 589; Hatcher v. Cantrell (1933), 16 Tenn.App. 544, 65 S.W.2d 247; McNair v. Boyette (1972), 282 N.C. 230, 192 S.E.2d 457; Cooper v. Teter (1941), 123 W.Va. 372, 15 S.E.2d 152. 2 Neither these cases nor any other authority discovered in our research justifies the application of a lesser standard of care. The attempt to analogize must fail. 3 In a case very similar to the one before us, this Court saw no reason to distinguish the standard of care owed one who voluntarily goes to the aid of a disabled vehicle. Walters v. Rowls (1938), 105 Ind.App. 632, 16 N.E.2d 969.

II. Class Protected

The sole allegation of negligence considered by the jury was Dreibelbis's violation of the statutory standard established by I.C.1971, 9--8--6--42, supra. The failure to comply with the mandates of the statutory predecessor to I.C.1971, 9--8--6--42, supra, has been held to be negligence per se in Indiana. Winder & Son, Inc. v. Blaine, (1940), 218 Ind. 68, 29 N.E.2d 987; Walters v. Rowls, supra. A necessary prerequisite to a recovery based upon the violation of a statutory standard of care is proof that the plaintiff is within the class of persons intended to be protected by that statute. Dreibelbis contends that Bennett was not within the class of persons intended to be protected by I.C.1971, 9--8--6--42, supra. We disagree.

In Walters v. Rowls, supra, this Court in applying and interpreting the statutory predecessor to I.C.1971, 9--8--6--42, supra, concluded that the class protected by it encompassed '. . . persons and property lawfully upon the public highway. . . .' 105 Ind.App. at 638, 16 N.E.2d at 972. Based upon the liberal interpretation accorded the statutory predecessor to I.C.1971, 9--8--6--42 in Walter v. Rowls, supra, we conclude that Bennett was clearly within the class of persons intended to be protected by its provisions.

III. Proximate Cause

Dreibelbis argues that any negligence attributable to him through a violation of I.C.1971, 9--8--6--42, supra, was not the proximate cause of injuries suffered by Bennett. Rather, he contends that the resulting harm to Bennett was not a foreseeable consequence of his conduct.

We agree that the statutory violation had to be the proximate cause for Bennett to recover. Surratt v. Petrol, Inc. (1974), Ind.App., 312 N.E.2d 487; Smith v. Chesapeake and Ohio Railroad Co. (1974), Ind.App., 311 N.E.2d 462. However, proximate causation, like other elements of substantive negligence law, is generally a question of fact for the trier of fact. Only when the facts are undisputed and lead to one conclusion, which is contrary to that reached by the trier of fact, will this Court reverse. Duvall v. Carsten-McDougall-Wingett, Inc. (1973), Ind.App., 297 N.E.2d 861; Woodrow v. Woodrow (1961), 131 Ind.App. 523, 172 N.E.2d 883. When treated as a question of fact, we will examine the record for the limited purpose of finding sufficient evidence of probative value which supports a reasonable conclusion that the negligence charged proximately caused the injury for which damages are sought. In doing so, we may not weigh the evidence and will look only to that evidence which supports the conclusion of the trier of fact. Duvall v. Carsten-McDougall-Wingett, Inc., supra.

The record discloses: A car-truck accident had occurred on a dark, rainy evening. The disabled vehicles blocked the major portion of an east-west artery in St. Joseph County. Dreibelbis was clearly negligent per se in failing to post the appropriate warning devices required by I.C. 1971, 9--8--6--42, supra. Walters v. Rowls; Winder & Son, Inc. v. Blaine, supra. Bennett voluntarily stopped at the scene of the accident to offer his assistance. He placed flares nearby to warn approaching traffic and directed traffic between the two damaged vehicles. While attempting to rekindle a flare extinguished by a passing motorist, he was struck and severely injured by a car that had swerved to avoid collision with the Dreibelbis truck. The testimony of a driver waiting in a line of traffic at the scene of the Dreibelbis-Titus accident indicates that the flares posted by Bennett were effective in warning traffic approaching from the east. Other testimony indicates that the flare placed to the west of the Dreibelbis truck had previously warned and halted estbound traffic. No warning flare was visible to the driver following the Fedders' car as it approached the accident scene, swerved to avoid the truck, and collided with Bennett.

Dreibelbis posits that Bennett's injuries were an unforeseeable consequence of negligence which merely furnished a condition for the intervention of Fedders. Considering the factual and appellate posture of this case, we see no need for an exhaustive consideration of the semantics of proximate causation. One's negligence may furnish a mere condition for the incidence of another's negligence and allow the original actor to escape liability. Schroer v. Funk & Sons, Inc. (1968), 142 Ind.App. 223, 233 N.E.2d 680; Slinkard v. Babb (1953), 125 Ind.App. 76, 112 N.E.2d 876. If true, such negligence was not the active or efficient cause of the resulting injury. However, the ultimate test of legal proximate causation is reasonable foreseeability. The assertion of an intervening, superseding cause fails to alter this test. City of Indianapolis v. Falvey (1973), Ind.App., 296 N.E.2d 896. For this Court to affirm a positive finding of proximate causation, we need only conclude that the evidence presented supports a reasonable conclusion that the original wrong was one of the proximate rather than remote causes. Swanson v. Slagal (1937), 212 Ind. 394, 8 N.E.2d 993; Evansville & Ohio Valley Ry. Co. v. Woosley (1950), 150 Ind.App. 570, 93 N.E.2d 355.

In a case closely analogous to the one...

To continue reading

Request your trial
26 cases
  • Kroger Co. v. Haun, 2-576A189
    • United States
    • Indiana Court of Appeals of Indiana
    • August 31, 1978
    ...that of Kroger's. See Hi-Speed Auto Wash, Inc. v. Simeri, supra, 346 N.E.2d 607; Dreibelbis v. Bennett (3d Dist. 1974) Ind.App., 319 N.E.2d 634. (2) Under the classic defense of contributory negligence, notwithstanding Kroger's negligence, it is contended that Haun failed to act as would a ......
  • Ortho Pharmaceutical Corp. v. Chapman, 1-877
    • United States
    • Indiana Court of Appeals of Indiana
    • March 29, 1979
    ...at 129. The question is whether "the original wrong was one of the proximate rather than remote causes." Dreibelbis v. Bennett, (1974) 162 Ind.App. 414, 319 N.E.2d 634, 638. Thus, "the ultimate test of legal proximate causation is the reasonable foreseeability. The assertion of an interveni......
  • Old Town Development Co. v. Langford, 2--973A207
    • United States
    • Indiana Court of Appeals of Indiana
    • June 17, 1976
    ...N.E.2d 844, 855; Chamberlain v. Deaconess Hospital, Inc. (1975), Ind.App., 324 N.E.2d 172, 175; Dreibelbis v. Bennett (1974), Ind.App., 319 N.E.2d 634. The duty which Old Town as a builder-owner landlord owed to its tenants was to design, construct, and maintain its apartment complex reason......
  • Persinger v. Marathon Petroleum Co., IP 83-1915C.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • November 18, 1988
    ...equal to or surpassing that of alleged tortfeasors is guilty of contributory negligence as a matter of law. Dreibelbis v. Bennett, 162 Ind.App. 414, 319 N.E.2d 634 (1974). If the plaintiff was actually aware of or should have appreciated the risks involved but proceeded to act nonetheless, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT