First Bank & Trust Co. of Clay County v. Bunch

• Decision Date: 29 February 1984
• Docket Number: No. 1-1182A327,1-1182A327
• Citation: 460 N.E.2d 517
• Parties: FIRST BANK & TRUST COMPANY OF CLAY COUNTY, Guardian of Gordon D. Weber, A Minor, Appellant (Plaintiff Below), v. Rita J. BUNCH, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 517

460 N.E.2d 517

FIRST BANK & TRUST COMPANY OF CLAY COUNTY, Guardian of

Gordon D. Weber, A Minor, Appellant (Plaintiff Below), v. Rita J. BUNCH, Appellee (Defendant Below).

No. 1-1182A327.

Court of Appeals of Indiana,

First District.

Feb. 29, 1984.

Hansford C. Mann, Stephen L. Williams, Mann, Chaney, Johnson, Goodwin & Williams, Terre Haute, for appellant.

William W. Drummy, Patrick, Gabbert, Wilkinson, Goeller & Modesitt, Terre Haute, for appellee.

ROBERTSON, Judge.

First Bank and Trust Company of Clay County, as the guardian of Gordon D. Weber a minor, appeals a negative judgment rendered in favor of the defendant, Rita J. Bunch, on its negligence complaint. In its complaint, the Guardian sought recovery for injuries Weber received when he rode his bicycle across State Road 340 in front of Bunch's automobile and was struck by it.

The Guardian raises several issues; all of these issues are related to a final instruction given by the trial court which dealt with the speed limit at the accident scene.

The instruction read:

COURT'S FINAL INSTRUCTION NO. 16

Ladies and gentlemen of the jury I instruct you that the court has found as a matter of law that the Highway Commission of Indiana had not adopted a resolution regulating the speed limit on State Road 340 at the point of the collision in question. Therefore the speed limit which existed at the time and place would be that which was reasonable and prudent under the circumstances then and there existing, but no more than 55 miles per hour.

The Guardian argues this instruction was erroneous because: 1) it was a "mandatory instruction", 2) the instruction invaded the jury's province by resolving a factual issue: the question of the speed limit at the accident site, 3) the weight of the evidence proved the speed limit at the scene was 40 miles per hour, 4) the trial court incorrectly interpreted IND.CODE 9-4-1-125(e) by concluding the absence from the state highway department's records of a resolution regulating the speed limit on State Road 340 was conclusive proof that the maximum speed limit was 55 miles per hour.

Although the Guardian challenges an instruction, our review reveals that the underlying issue is the propriety of a partial judgment on the evidence that was granted on Bunch's motion at the close of all the evidence. The Guardian had alleged Bunch was negligent because she was exceeding a 40 miles per hour speed limit applicable to the collision site, an attempt to prove statutory negligence or negligence per se. Primarily relying on I.C. 9-4-1-125(e), the trial court decided the state had not chosen to restrict the maximum speed limit on State Road 340; therefore, the speed limit was whatever was reasonable and prudent, but a maximum of 55 miles per hour. The challenged instruction was given as a result of the judgment on the evidence.

Our standard of review for determining whether a motion for judgment on the evidence was properly granted is the same standard utilized by the trial court in making its decision. We look only to the evidence and reasonable inferences therefrom most favorable to the non-moving party. The motion should be granted only where there is a complete failure of proof, that is where there is no substantial evidence or reasonable inference from the evidence supporting an essential element of the claim. A.A.A. Exteriors v. Don Mahurin Chevrolet, (1981) Ind.App., 429 N.E.2d 975. Neither this court nor the trial court may weigh conflicting evidence when examining a motion for judgment on the evidence. Huff v. Travelers Indem. Co., (1977) 266 Ind. 414, 363 N.E.2d 985.

The gist of the Guardian's argument is that the trial court weighed conflicting evidence. The Guardian argues it at least made a prima facie case that the speed limit at the collision site was 40 miles per hour; therefore, it also argues the jury should have resolved the issue and could have found the speed limit was 40 miles per hour. The Guardian contends it complied with the criteria of I.C. 9-4-1-125(e). The relevant parts of the statute read:

(e) Whenever under the provisions of this chapter the department of highways is empowered to designate or determine the location of, necessity for, and extent of:

* * *

(2) State speed zones, section 57(b) [9-4-1-57] of this chapter; such designation or determination shall be by order of the director of the department of highways and shall except for item (1) be evidenced by official signs or markings as provided in this chapter.

* * *

On the trial of any person charged with the violation of the restrictions thus imposed and in all civil actions, oral evidence of the location and content of such signs or markings shall be prima facie evidence of the adoption and application of such restriction by the department of highways and the validity thereof. The department of highways shall upon request by any party in any action at law furnish, under seal of the commission, a certified copy of the order establishing the restriction in question which shall be accepted by any court as conclusive proof of such designation or determination by the director of the department of highways. Such certified copies shall be furnished without cost to the parties to any court action involving such restriction upon request. (Emphasis added). ¹

The evidence favorable to the Guardian's case and uncontradicted evidence shows that on August 15, 1979, Bunch was driving west on State Road 340 and going to work in Terre Haute. According to her own testimony, she was driving 45 to 50 miles per hour in a 40 miles per hour zone. She had passed several signs which indicated the speed limit was 40 miles per hour. The last of the signs was 2950 feet east of the collision site. The next sign was approximately two miles beyond the accident site to the west. Weber rode his bicycle from a private drive south across the road. Bunch explained she did not see Weber until immediately prior to hitting him at which time she applied her brakes and swerved to the left. According to expert testimony introduced by the Guardian, based upon an analysis of the accident site and damage, Bunch was traveling at 60 miles per hour. Evidence was also introduced that there was an unobstructed view from the east toward the collision site for a distance of 400 feet.

In addition, regarding the alleged 40 miles per hour speed limit, the Guardian introduced evidence of 18 speed limit signs between Brazil, located east of the accident and Cloverland located west of the site. Thirteen of these signs specified a speed of 40 miles per hour and two indicated a 30 miles per hour limit. The Guardian contends the latter evidence satisfied the requirements for a prima facie case in subsection 125(e).

In response, Bunch introduced a certified statement made by the records deputy of the Indiana Department of Highways which reads:

OFFICERS OF THE INDIANA DEPARTMENT OF HIGHWAYS

I, the undersigned, Daniel A. Novreske, Deputy Director of Highway Administration, Department of Highways, hereby certify that I am the duly authorized custodian of the files and records of the department and that a search of our files fails to reveal any Department Resolution regulating speed on SR 340 in Clay County, Indiana on August 15, 1979.

The trial court relied on subsection 125(e) and accepted this statement as conclusive proof to decide that the department had not regulated the speed limit on State Road 340.

The Guardian argues subsection 125(e) was only intended to apply to situations where a restrictive limit has been adopted by the highway department. In support of this viewpoint, it claims the trial court's interpretation conflicts with IND.CODE 34-3-17-1 et seq. and Ind.Rules of Procedure, Trial Rule 44(B).

The trial court did not err in its interpretation of IND.CODE 9-4-1-125(e) and did not invade the jury's province by granting judgment on the evidence on the issue of the alleged violation of a 40 miles per hour speed limit. The Guardian has focused on one part of subsection 125(e) without considering the whole subsection and its relationship to other parts of Indiana's highway act.

IND.CODE 9-4-1-57 pertains to speed regulations and establishes a maximum lawful speed on Indiana's highways of 55 miles per hour in non-urban areas. IND.CODE 9-4-1-58 pertains to alterations of this limit and other limits by local authorities. Subsection (d) of section 58 curtails the localities's power to alter speed limits on state highways in the following language:

(d) Local authorities shall not have power to alter speed limits on any highway or extension thereof in the state highway system except that incorporated cities and towns may establish speed limits on state highways upon which a school is located: Provided, That such limit shall only be valid if (1) the limit is not less than miles per hour, (2) the limit is imposed only in the immediate vicinity of the school, (3) children are present, (4) if the speed zone is property signed, and (5) the department of highways has been notified of the limit imposed, by registered or certified mail. (Emphasis added).

The state's authority to regulate speed limits on its highways, apart from the ultimate maximum limit specified in I.C. 9-4-1-57, is entrusted to the highway department. IND.CODE 9-4-1-61 gives the department authority to establish state speed zones after conducting engineering studies. This section provides the speed limits shall be effective when the appropriate signs giving notice of them are erected. Subsection 125(e) provides these speed limits shall be designated or determined by an order of the highway department's director. ²

Therefore, the maximum speed limit on our state highways is either 55 miles per hour, I.C. 9-4-1-57, or it is set by the highway department pursuant to the procedures in subsection 125(e) and the power conferred by I.C. 9-4-1-61. In this context, there was no factual question for the jury in the case at...