Fields v. Hahn, No. 17256.

• Docket Nº: No. 17256.
• Citation: 57 N.E.2d 955, 115 Ind.App. 365
• Case Date: December 08, 1944
• Court: Court of Appeals of Indiana

115 Ind.App. 365
57 N.E.2d 955

FIELDS
v.
HAHN.

No. 17256.

Appellate Court of Indiana, in Banc.

Dec. 8, 1944.

Appeal from Pulaski Circuit Court; Robert E. Thompson; Judge.

Action by Frank Fields against Warren Hahn for injuries sustained by plaintiff when he was struck by defendant's automobile. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

[57 N.E.2d 956]

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

[57 N.E.2d 957]

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,...