Fields v. Hahn

• Decision Date: 08 December 1944
• Docket Number: 17256.
• Citation: 57 N.E.2d 955,115 Ind.App. 365
• Parties: FIELDS v. HAHN.
• Court: Indiana Appellate Court

57 N.E.2d 955

115 Ind.App. 365

FIELDS v. HAHN.

No. 17256.

Appellate Court of Indiana, in Banc.

December 8, 1944

McKesson & Kizer, of Plymouth, and Kenneth Booz, of Bourbon, for appellant.

Stevens & Stevens, of Plymouth, and Horner, McDowell & Gast of Winamac, for appellee.

DRAPER Chief Judge.

Action for damages for personal injuries. Verdict for defendant and judgment accordingly. Plaintiff appeals.

The plaintiff, who was about to walk across a heavily traveled public highway at night, saw the headlights of an automobile approaching from either direction, each about two blocks away. He started across, but stopped when he reached the center of the highway because he was blinded by the lights of the defendant's car, which was approaching from his right. Whether defendant's automobile struck him or whether he walked into it is in dispute, both parties claiming they at no time crossed the center line of the roadway.

The plaintiff, who sustained serious personal injuries, first asserts error in the refusal of his tendered Instruction Number 2, which reads as follows:

'I instruct you that there was in full force and effect at the time of the accident in question, as alleged in plaintiff's complaint, a Statute of the State of Indiana which provides in part, as follows:

"When traffic ontrol signals are not in place or not in operation the driver of a vehicle shall yield the right of way, slowing down or stopping if need be, so to yield to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger, but no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.'

'So in this case, if you find from the evidence that the plaintiff was a pedestrian crossing the roadway within a crosswalk and that the plaintiff was approaching the half of the roadway upon which the defendant was driving his automobile, and that he was approaching it so closely as to be in danger, if you further find that no traffic control signals were in operation at said crossing, then I instruct you that it was the duty of the defendant to have yielded the right of way to the plaintiff. I further instruct you that if you so find that the defendant failed to yield the right of way to the plaintiff, and that such failure, if you so find, was the sole proximate cause of the injuries to the plaintiff, then, in that event, your verdict may be for the plaintiff.'

The complaint, to which no motion of any kind was addressed by the defendant, reads, insofar as the same is pertinent to this discussion, as follows:

'* * * 2. That on the 24th day of September, 1941, the defendant was operating a certain 1937 Chevrolet Sedan on U. S. Road Number 30 east of the town of Bourbon, Indiana.

'3. That at all times hereinafter mentioned, the said defendant was operating said automobile in an easterly and southeasterly direction on said highway, which said highway is a public highway in Marshall County, Indiana.

'4. That on the said 24th day of September, 1941, at about 8:00 o'clock P. M., the plaintiff was walking across said highway in a southwesterly direction about two hundred feet southeast of the fork formed by the intersection of said U. S. Highway Number 30 and an east and west public highway.

'5. That before crossing said highway, the plaintiff looked both to his right and left, and not seeing any automobiles approaching in close proximity started to walk across said highway in a southwesterly direction until he reached the center of the travelled portion of said highway.

'6. That at said time and place the defendant was driving said automobile in an easterly and southeasterly direction as he approached the plaintiff at a high and dangerous rate of speed, to-wit: Sixty (60) miles per hour. Said point on the highway where plaintiff was crossing is along the corporation limits of the town of Bourbon, Indiana, and is a heavily travelled public highway at said point, and the traffic on said highway at said time and place was heavy.

'7. That the defendant negligently and carelessly, driving his car as aforesaid, ran said automobile into and against the plaintiff, striking him to the pavement and inflicting severe bodily injury on him.

'8. That said collision was caused solely and wholly and proximately by the negligence of the defendant, and that defendant's negligence consisted, among other things, of the following:

'(A) In then and there operating said automobile at a speed greater than was reasonable and prudent, considering the proximity to the corporation limits of the town of Bourbon, the poor visibility, the density of the traffic, and the condition of the highway at said place, which consisted of a curve.

'(B) In then and there failing to have and keep his automobile under proper and reasonable control so as not to endanger the life of the plaintiff.

'(C) In then and there failing to keep a proper lookout ahead for pedestrians crossing said highway.

'(D) In then and there failing to sound his horn or other warning signal on his automobile so as to apprise the plaintiff of the approach of the defendant in said automobile.'

To meet the defendant's contention that the instruction was properly refused because it was not within the issues as presented by the pleadings, the plaintiff asserts that because of the inclusion in his complaint of the words therein italicized by us, he was not confined to the specific allegations of negligence, but could prove any negligence on the defendant's part which proximately caused his injuries.

It is apparent that by this instruction the plaintiff sought to take advantage of the statute therein quoted. To justify that, the averments of his complaint should bring the case within the statutory provisions, or state the facts so fully and directly that from the facts pleaded it readily appears that the case falls within the statute and discloses the duty owed by the defendant to the plaintiff, without indulging in speculation or depending on doubtful inference. City of Logansport v. Wright, 1865, 25 Ind. 512; LaPorte Carriage Co. v. Sullender, 1905, 165 Ind. 290, 75 N.E. 277; Steiert v. Coulter et al., 1913, 54 Ind.App. 643, 102 N.E. 113, 103 N.E. 117; Cleveland, C., C. & St. L. R. Co. v. Stevens, 1912, 49 Ind.App. 647, 96 N.E. 493; Terre Haute Union Tran. & Stor. Co. v. Pickett, 1938, 106 Ind.App. 82, 15 N.E.2d 765, 16 N.E.2d 778; 45 C.J., § 642, p. 1070, § 644 p. 1092. The complaint fails to meet this test, and were therefore conclude that the instruction was outside the issues presented by the pleadings whether or not the plaintiff was at liberty to prove acts of negligence not specifically alleged.

The plaintiff insists that evidence sufficient to sustain a recovery on the theory of the instruction was admitted without objection, and the complaint should therefore be deemed amended to conform thereto so as to justify the giving of the instruction. But there are many cases holding that instructions to the jury must be confined to the issues made by the pleadings, and the rule that instructions must correctly state the law relevant to the issuable facts given in evidence on the trial of a cause is not altered by the fact that evidence of negligence not pleaded is admitted without objection. Indiana Railway Company v. Maurer, 1903, 160 Ind. 25, 66 N.E....