Ewing v. Biddle
| Citation | 141 Ind.App. 25,216 N.E.2d 863 |
| Decision Date | 31 May 1966 |
| Docket Number | No. 1,20217,Nos. 20216,s. 20216,1 |
| Parties | Carroll EWING, Appellant, v. Alice BIDDLE, Appellee. Richard Paul EWING, by Carroll Ewing, his next friend, Appellant, v. Alice BIDDLE, Appellee |
| Court | Court of Appeals of Indiana |
Paul Reed, Knox, Milton A. Johnson, South Bend, for appellant.
Arthur A. May, Thomas H. Singer, South Bend, for appellee.
These are two consolidated actions for damages, one filed by Carroll Ewing and one by Richard Paul Ewing, by his next friend, Carroll Ewing, against Alice Biddle. Carroll Ewing is the father of Richard Ewing and his personal suit was for loss of the services of his son. Richard Ewing by his next friend, sued for his personal injuries sustained. Richard was 11 years of age at the time of the accident set out.
The defendant was driving her automobile west on State Highway 8 in Starke County, Indiana. This highway intersects Road 1100 E which runs north and south. Both roads are black top.
The defendant testified that as she approached the intersection, she saw a boy on her left proceeding north on Road 1100 E. It was later determined that the person shw saw was Richard Ewing and that he was riding on a homemade 'go-cart.' She blew her horn and proceeded. The boy crossed in front of her car and out of her sight. She further stated that as she crossed Road 1100 E she heard a 'thump' on her [141 INDAPP 27] right side. She stopped her car and backed up. The boy was lying at the side of the road, some distance north of Highway 8 and west of Road 1100 E. He had been riding the 'go-cart' which consisted of a wooden frame with four wheels and a small gasoline engine mounted on the frame.
The plaintiff, Richard Ewing, testified that he was going south on Road 1100 E when the collision occurred and that he did not remember being on the south side of Highway 8 going north across the highway. In this respect there is conflict in the evidence.
The two cases were consolidated for purposes of trial in the court below. The jury returned verdicts for the defendant-appellee that plaintiffs take nothing by their complaint and judgment was entered on the verdicts accordingly. Both plaintiffs made a motion for a new trial which were overruled, such action being assigned as error.
The grounds in the motion for new trial which are treated in the Argument here, are Ground 3 which alleges error in the giving of Defendant's Instructions No. 6 and No. 19, and Ground 4, which claims error in not giving Plaintiffs' Instructions Nos. 5, 16, 18 and 21. This opinion will treat the above instructions in order.
Defendant's Instruction No. 6 is as follows:
'It is provided by law in the State of Indiana that when a stop sign is erected at one or more entrances of an intersection, the driver of the vehicle approaching the stop sign shall stop in obedience to said stop sign, and shall proceed cautiously, yielding the right of way to vehicles not so obligated to stop, which are in the intersection or approaching so closely as to constitute an immediate hazard. * * *'
The objection to said No. 6 is as follows:
'The plaintiff is only required to exercise the care of (that) a child his age, training and experience, (would exercise) and this instruction is mandatory and leaves (out) that element.'
Defendant's Instruction No. 19 is as follows:
'So in this case, should you find by a fair preponderance of all of the evidence in this cause, that the plaintiff, Richard Ewing, operated a motor vehicle on the public highway in the State of Indiana, which said motor vehicle was not equipped with brakes as provided above, to stop and control the movement of such vehicle, I instruct you that this would constitute evidence of negligence, and should you further find by a fair preponderance of all of the evidence, that such negligence on the part of the plaintiff, Richard Ewing, caused or contributed to the accident in controversy, then your verdict should be for the defendant and against the plaintiff in this cause.'
The objection made is as follows:
'Plaintiff objects to Defendant's tendered Instruction Number 19 for the reason that this instruction tells the jury that a violation of a section of the motor vehicle code amounts to negligence or evidence of negligence on the part or contributory negligence on the part of a minor aged [141 INDAPP 29] eleven years, and the instruction is mandatory in form and does not contain all of the elements and contradicts other instructions on the obligation of a minor.'
Defendant's tendered Instruction No. 6 is based upon the duty required of the driver of a vehicle as set forth in Burns' § 47--2028, which reads as follows:
'ENTERING THROUGH HIGHWAY OR INTERSECTION.--(a) The driver of a vehicle shall stop as required by this act at the entrance to a through highway and shall yield the right of way to other vehicles which have entered the intersection from said through highway or which are approaching so closely on said through highway as to constitute an immediate hazard, but said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said through highway shall yield the right of way to the vehicle so proceeding into or across the through highway.
'(b) The driver of a vehicle shall likewise stop in obedience to a stop sign as required herein at an intersection where a stop sign is erected at one (1) or more entrances thereto although not a part of a through highway and shall proceed cautiously, yielding to vehicles not so obliged to stop if necessary at the entrance to a through highway so closely as to constitute an immediate hazard, but may then proceed.'
Defendant's tendered Instruction No. 19 is based upon Burns' § 47--2228, which reads as follows:
[141 INDAPP 30] The principal point urged by the appellants' in the giving of the above instructions Nos. 6 and 19 is that they omitted the requirement that the jury should consider the age, education and experience of the minor appellant in determining whether or not a violation of the statutory duties contained in said instructions constituted negligence on the part of said appellant and whether or not the operation of a vehicle upon the public highway by a minor, and the lack of proper equipment on such vehicle, would be considered evidence of negligence without consideration to his age, education or experience.
It is thus a question of whether or not the statutes governing the operation of motor vehicles upon a highway applies to all operators of motor vehicles or whether or not exceptions should be made in cases where the operators of motor vehicles are minors.
The legislature in enacting the above statutes referred to all operators and drivers a motor vehicles. The intent to include all persons is determined in some degree by the fact that the provisions of the motor vehicle code are applied to all persons as set forth in Burns' § 47--2102, which reads as follows:
'Traffic laws apply to persons riding bicycles.--Every person riding a bicycle upon a roadway shall be subject to the provisions of this act applicable to the driver of a vehicle, except as to special regulations of this article, (* * *) and except as to those provisions of this act which by their nature can have no application.'
Although no cases in point have been cited which apply to 'go-carts' or similar vehicles, we must conclude that the same standard should apply to such type of vehicle. To give legal sanction to the operation of automobiles, bicycles or any other motor driven vehicle by minor or teenagers, with less than ordinary care, for the safety of others, would be impractical as well as dangerous. If the rule were otherwise, a state of uncertainty would result, because then [141 INDAPP 31] it would be a question for...
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