Duchane v. Johnson
| Decision Date | 11 February 1980 |
| Docket Number | No. 1-579A147,1-579A147 |
| Citation | 400 N.E.2d 193 |
| Parties | Robert J. DUCHANE, Appellant (Defendant Below), v. James M. JOHNSON, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Joseph Beardsley, Clinton, McGlone & Abel, Terre Haute, for appellant.
Malcolm H. Aukerman, Newport, Max E. Goodwin, Mann, Chaney, Johnson, Hicks & Goodwin, Terre Haute, for appellee.
This appeal arises out of a jury verdict in favor of plaintiff-appellee James M. Johnson (Johnson) in a negligence suit brought by him against Robert J. Duchane (Duchane), the defendant-appellant. Duchane presents three basic issues for our review. The first is the failure of the trial court to give certain instructions tendered by Duchane concerning his theory of defense, and the second issue is the propriety of the giving of certain instructions regarding damages under the facts of the case. Duchane also raises the issue of whether the damage award was excessive.
We affirm.
The facts most favorable to the judgment disclose that Johnson was traveling east on his bicycle on a through street on October 3, 1976 at about 8:45 p. m. Duchane was driving a van in a westerly direction on the same street, made a left-hand turn and hit Johnson on his bicycle. Duchane had his vehicle lights on and Johnson had his bicycle light on. Both were traveling within the speed limit. Johnson's testimony was that the van turned so sharply he had no time to avert it. Duchane testified he was not aware of Johnson until he hit him. Johnson suffered an injury to his hip that later required surgery. The injury was a stretching of soft tissue that caused a "snapping hip" sensation. The surgery was apparently successful, as the "popping" sensation no longer occurred. The jury awarded damages in the amount of $30,000 to Johnson.
Duchane first claims that the trial court committed error in refusing two of his tendered instructions. The first instruction was a modification of Pattern Jury Instruction No. 7:03 the burden of proof instruction. The tendered instruction listed the defendant's contentions as to the plaintiff's contributory negligence as:
(1) failing to exhibit a light on his bike;
(2) failing to keep a lookout for others using the public way;
(3) failing to yield the right of way to oncoming traffic;
(4) failing to maintain his bicycle under control in that Johnson failed to turn or brake in time to avoid the collision.
The second instruction explained the duty of maintaining a lookout and the legal consequences of failing to do so.
Dahlberg v. Ogle, (1978) Ind., 373 N.E.2d 159, 164-165, quoting Davis v. State, (1976) 265 Ind. 476, 478, 355 N.E.2d 836, 838, succinctly sets out our method of review in considering refused instructions:
In considering whether any error results from refusal of a tendered instruction we must determine: (1) whether the tendered instruction correctly states the law, (citation omitted); (2) whether there is evidence in the record to support the giving of the instruction, (citation omitted); (3) whether the substance of the tendered instruction is covered by other instructions which are given, (citation omitted).
It has also been stated that it is reversible error for a trial court to refuse an instruction covering an essential element of a party's case when it is supported by some evidence, is consistent with the theory of the case, and where there is no other instruction covering that area of the law. Burkett v. Crulo Trucking, Inc., (1976) Ind.App., 355 N.E.2d 253, 261. However, we also note:
. . . (W)hen a judge refuses a tendered instruction which he could have given without committing error, harmful error should not be presumed and we should not reverse, unless we find that the refused instruction covers a relevant point on which the jury has not otherwise been instructed, or unless some other circumstance is shown which indicates a reasonable probability that the substantial rights of the complaining party have thereby been adversely affected.
The trial court, besides giving the pattern instructions on contributory negligence, gave an instruction on the duty to display a light on a bicycle at night and the legal effects of the failure of this duty. The trial court also gave an instruction involving the statute on the right of way in a left-hand turn with approaching traffic. We think that such instructions adequately presented the defendant's theories of contributory negligence to the jury. Duchane's essential argument concerning lookout is that in failing to maintain a lookout, Johnson did not properly yield the right of way. Thus, the right of way instruction adequately covers Duchane's theory. 1 Also there was no evidence presented at trial that Johnson could have avoided the accident. Duchane attempts to parlay an isolated remark of Johnson at trial (that he thought just before the collision that he was about to be hit) into evidence of sufficient time to avoid the accident. An examination of the record makes it clear that the evidence is uncontroverted that Johnson did not have an opportunity to avoid the accident. We conclude, then, that because other instructions the court gave adequately covered the issues on which there was evidence, there was no error in refusing Duchane's instructions. Dahlberg, supra.
The second issue on appeal questions the giving of instructions by the trial court on certain elements of damages. These elements are impairment of earning capacity and damages for future pain, suffering and medical care. Included in this issue is error claimed for failure to give an instruction tendered by Duchane which took consideration of future pain, suffering, and disability away from the jury.
Johnson presents the specter of waiver by Duchane on this issue. He notes that Duchane specifically objected at trial to only the impairment of earnings element of the damage instruction given. Thus, Johnson claims, Duchane waived objection to the future elements of the instruction. Johnson fails to note, however, that Duchane did tender an instruction which, if given, would have taken consideration of future damages away from the jury. The tendering of an instruction automatically gives the...
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