Elliott v. State, 1--375A52
| Decision Date | 26 February 1976 |
| Docket Number | No. 1--375A52,1--375A52 |
| Citation | 168 Ind.App. 210,342 N.E.2d 674 |
| Parties | Dorothy A. Hufnagel ELLIOTT, Administratrix of the Estate of John E. Hufnagel, Deceased, Plaintiff-Appellant, v. STATE of Indiana, Defendant-Appellee. |
| Court | Indiana Appellate Court |
Gary E. Becker, Zoercher, Becker & Huber, Tell City, for appellant.
Theodore L. Sendak, Atty. Gen., John R. O'Bryan, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal of a wrongful death action from a judgment on the evidence granted on defendant-appellee's (State) motion at the close of plaintiff-appellant's (Elliott) case.
The undisputed facts are that on November 24, 1971, a hazy day, decedent (Hufnagel) was driving north in Spencer County on State Highway 161, a two lane road approximately 22 1/2 feet wide. Hufnagel was following a truck. As Hufnagel was attempting to pass on the left, the truck was commencing a left turn onto an unmarked county road. The vehicles collided, and Hufnagel's auto caromed into a bridge abutment just beyond the county road. Hufnagel was fatally injured.
Additional undisputed facts are that the elevation of the county road was lower than the highway making it difficult to see by drivers approaching on the highway that the highway had no pavement markings in the vicinity of the mishap to indicate a no-passing zone, and that there existed no traffic signs to indicate the existence of the county road or to warn of a no-passing zone or the possibility of left turns.
Elliott's complaint alleged negligence by the State for failure to properly design and construct the intersection, failure to erect and maintain a proper warning sign, light or other device to give the public notice of the intersection, and failure to paint lines on the pavement to indicate a no-passing zone.
Elliott's evidence at trial as to the issue of the State's negligence consisted of photographs of the intersection from various points on Highway 161, motion pictures of the intersection taken from a moving vehicle approaching at various speeds, testimony from the investigating officer and an expert witness in the area of accident reconstruction, and portions of the Indiana Manual on Uniform Traffic Control Devices for streets and highways.
At the conclusion of plaintiff's case, the State moved for and was granted a judgment on the evidence, Ind. Rules of Procedure, Trial Rule 50(A)(1), contending that Elliott had offered no evidence nor could there be drawn reasonable inferences to show all the essential elements of negligence.
The standard for granting a motion based upon TR. 50(A)(1) is that a court should not grant a judgment on the evidence motion for a defendant unless there is a total absence of evidence or reasonable inference to be drawn therefrom on at least one essential element of a plaintiff's case. Manula v. Ford Motor Company (1971), 150 Ind.App. 179, 275 N.E.2d 849..
Elliott maintains on appeal that she introduced ample evidence on each element of negligence and that such evidence would support a finding of negligence by a jury. It is alleged that the trial court, in reaching its decision, weighed the evidence and that the decision is thus contrary to law as well as contrary to the evidence.
In Miller v. Griesel (1974), Ind., 308 N.E.2d 701, the Indiana Supreme Court stated:
'In Indiana the tort of negligence is comprised of three elements: (1) a duty on the part of defendant in relation to the plaintiff; (2) failure on the part of defendant to conform its conduct to the requisite standard of care required by the relationship; and (3) an injury to the plaintiff resulting from that failure.'
In Miller, supra...
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State v. Edgman, 3-680A171
...position is incorrect. Instruction No. 13 is an exact rendition of the State's standard of care as we defined it in Elliott v. State, (1976) 168 Ind.App. 210, 342 N.E.2d 674; accord, State v. Thompson, supra. As for Instruction No. 14, it reflects substantially the same law as No. 13 except......
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...reasonable care in the design, construction and maintenance of its highways for the safety of public users. Elliott v. State, (1976) 168 Ind.App. 210, 342 N.E.2d 674. The standard of care is that which would be exercised by an ordinary prudent person under the circumstances. Miller v. Gries......
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