Enyart v. Blacketor

• Court: Indiana Appellate Court
• Writing for the Court: HOFFMAN; GARRARD; STATON
• Citation: Enyart v. Blacketor, 342 N.E.2d 654, 168 Ind.App. 214 (Ind. App. 1976)
• Decision Date: 27 February 1976
• Docket Number: No. 3--1273A162,3--1273A162
• Parties: Dawn Michelle ENYART, by her next friend, William Frederick Enyart, Plaintiff-Appellant, v. Kline BLACKETOR, Jr., Defendant-Appellee. William F. ENYART and Patricia M. Enyart, Plaintiffs-Appellants, v. Kline BLACKETOR, Jr., Defendant-Appellee.

Page 654

342 N.E.2d 654

168 Ind.App. 214

Dawn Michelle ENYART, by her next friend, William Frederick

Enyart, Plaintiff-Appellant, v. Kline BLACKETOR, Jr., Defendant-Appellee.

William F. ENYART and Patricia M. Enyart, Plaintiffs-Appellants, v. Kline BLACKETOR, Jr., Defendant-Appellee.

No. 3--1273A162.

Court of Appeals of Indiana, Third District.

Feb. 27, 1976.

Rehearing Denied April 19, 1976.

Herbert D. Rollo, Bangs & Rollo, Huntington, Charles R. Tiede, Plummer, Tiede, Magley & Metz, Wabash, for appellants.

Herbert H. Bent, Rockhill, Kennedy, Pinnick, Sand & Bent, Warsaw, Robert E. Peterson, Rochester, for appellee.

HOFFMAN, Judge.

Plaintiffs-appellants Dawn M. Enyart (Dawn) and her parents, William F. and Patricia M. Enyart (the Enyarts) commenced separate actions in the trial court, which were consolidated prior to trial, seeking damages for injuries sustained when Dawn's bicycle collided with a vehicle driven by defendant-appellee Kline Blacketor, Jr. Trial was had before a jury, which returned a verdict in favor of Blacketor. Judgment was entered thereon, and this appeal was perfected.

The first issue presented on appeal is whether the trial court erred in granting a motion in limine filed by Blacketor, and in entering an order proscribing any reference during the trial to a 20 mile per hour speed limit sign which was posted near the accident scene. Blacketor's motion in limine asserted that the legal speed limit at the collision scene was not 20-miles per hour, and that the Enyarts intended to show the existence of the sign at trial, to his prejudice.

Blacketor's ground for the asserted illegality of the speed limit sign was that the City of Rochester, which had jurisdiction over the collision scene, had not acted pursuant to State statute so as to alter the speed limit from the general speed limit of 30 miles per hour prescribed by statute for such urban areas. The Enyarts, however, contended in the trial court and on appeal that such speed limit had been duly altered to 20 miles per hour under the authority of an ordinance of the City of Rochester in effect at the time of the collision here at issue.

The parties do not dispute that the general speed limit applicable to the street when this mishap occurred was 30 miles per hour under the provisions of IC 1971, 9--4--1--57(b)(1) (Burns Code Ed.). Both parties also recognize that IC 1971, 9--4--1--58 (Burns Code Ed.), enabled 'local authorities' to decrease such speed limit within the 'urban districts' covered by IC 1971, 9--4--1--57(b)(1), supra, to not less than 20 miles per hour where the general speed limit had been determined to be greater than what was reasonable and safe on the basis of an engineering and traffic investigation. The dispute as to this issue thus centers about the aforementioned Rochester City Ordinance, which the appellants assert authorized a 20 mile per hour speed limit at the collision scene.

The appellants had the burden of proving the facts upon which they base their claim of negligence. In the case at bar, the maximum legal speed at the accident scene was placed in issue by the pleadings. Where a claim or a portion thereof is based on a municipal ordinance, the burden is upon the party asserting such claim to establish the existence of such ordinance, since the courts of this State do not take judicial notice of such ordinances. See, Matter of Public Law No. 305 and Public Law No. 309 (1975), Ind., 334 N.E.2d 659, 662, and cases cited therein. Thus, in the case at bar, the appellants had the further burden of showing the existence of a city ordinance setting the speed limit which they alleged Blacketor had negligently violated. In response to such burden, appellants asserted the existence of the Rochester City Ordinance mentioned hereinabove.

The portions of such ordinance which have been made a part of the record of this cause enable the Chief of Police of the City of Rochester to 'determine the installation and proper timing and maintenance of traffic-control devices' such as signs, and to make 'temporary or experimental regulations to cover emergencies or special conditions.' The Chief of Police is also empowered to conduct studies related to traffic engineering and planning.

Appellants' exact assertion with regard to this ordinance is that because there is a presumption that public officials act in conformity with the law, it must be presumed that the speed limit sign here at issue was posted by the Chief of Police in the exercise of his powers to erect signs and make traffic regulations under the foregoing ordinance. Therefore, because they had established such ordinance as a legal basis for such sign, appellants contend, the trial court erroneously placed upon them the burden of showing another city ordinance altering such speed limit as a precondition to the admission of evidence showing the existence of the sign.

However, even assuming arguendo that such ordinance could have properly authorized an alteration of the general speed limit under State law, appellants have at no time shown or offered to show that this speed limit sign was put in place by an order of the Chief of Police. While it may be presumed that such a public official acts in conformity with the law, ¹ there is no basis in law or reason for a presumption in the case at bar that the Chief of Police acted to cause the placement of this sign. Because appellants have never shown or offered to show the facts necessary to come within the terms of the aforementioned ordinance, the trial court properly placed upon them the burden of showing that a 20 mile per hour speed limit had been set at the accident scene by authority of some other ordinance enacted pursuant to IC 1974, 9--4--1--58, supra. Moreover, because the appellants thereafter failed to show the existence of any proper authority for a deviation in the speed limit at the collision scene from the general speed limit statute, any evidence which the appellants would have introduced tending to establish such a speed limit as the legal speed limit in the eyes of the jury would have been irrelevant and prejudicial, and properly excludable through an order in limine. See, Burrus v. Silhavy (1973), Ind.App., 293 N.E.2d 794. It must be concluded that the trial court did not err in proscribing any reference at trial to the disputed speed limit sign following appellants' failure to carry their burden of showing an applicable ordinance validating such sign.

Appellants' next contention is that even if they failed to establish the validity of such sign, still evidence of its existence and the defendant's disregard of its apparent mandate should have been presented at trial for the jury to consider as some evidence of his negligence. Appellants support this contention through the citation of cases involving the disregard of irregularly posted traffic control devices, most notably including Geisking v. Sheimo (1960), 252 Iowa 37, 105 N.W.2d 599, 2 A.L.R.3d 268.

Appellants, at page 19 of their brief, succinctly state their position as follows:

'The Court's order limiting the evidence as to the existence of the speed signs without first proving the signs were authorized by specific ordinance, etc. was clearly a ruling by the Court as to the fact that if a speed sign was an unauthorized sign, it would not be negligence per se to violate the regulation.'

The assertion that the violation of an illegal speed limit sign is evidence of negligence is supported by appellants with the following quotation from Geisking v. Sheimo, supra, at 41 of 252 Iowa, at 601 of 105 N.W.2d, at 272--73 of 2 A.L.R.3d:

'(T)he great weight of authority is that even an unauthorized sign is not meaningless when questions of negligence are under consideration. We agree with the rule stated in 164 A.L.R., at page 216, under the heading 'Anno--Traffic Control at Street Intersection'. It is there said: 'Furthermore, many courts take the view that even if it is shown that the traffic signal involved was not properly authorized, it is still effective to control the question of the negligence or contributory negligence of a pedestrian or vehicle driver who disregards it, at least to the extent that such disregard may be taken into consideration by the trier of the facts as one of the circumstances to be passed upon in determining the question of a violator's negligence or contributory negligence."

However, appellants' reliance on Geisking v. Sheimo, supra, and the cases cited therein, is misplaced. As pointed out by appellee Blacketor, a fundamental difference exists between cases such as Geisking v. Sheimo, supra, and the case at bar. In the former class of cases, a defendant's disregard of an irregularly posted traffic control device which gives notice of the existence of a hazardous situation is considered to be some evidence of his negligence. However, in the instant case, it cannot be said that the speed limit sign gave Blacketor any notice of any hazard, so as to render his asserted disregard of it a disregard of known hazardous consequences.

A careful study of Geisking v. Sheimo, supra, and the cases cited therein, discloses that the warning or notice aspect of such irregular traffic control devices was considered by those courts to be dispositive of the issue of whether a disregard of them was evidence of negligence. For example, the following language is found in Cook v. Hunter (1935), 52 Ohio App. 354, 3 N.E.2d 680, at 682:

'It has always been permissible to show all the conditions, facts, and circumstances surrounding the location of a collision of this character, in determining whether the respective parties, in view of these conditions, facts and circumstances, acted as ordinarily prudent persons would act under like conditions, facts, and circumstances, and were therefore guilty of negligence or contributory negligence, directly and proximately producing the collision and injury, although a criminal conviction...