Foster v. Continental Can Corp.

• Decision Date: 19 February 1986
• Docket Number: No. 84-1683,84-1683
• Citation: 783 F.2d 731
• Parties: Sally Ann FOSTER, Plaintiff-Appellant, v. CONTINENTAL CAN CORPORATION, Donald F. Elling and Diversified Labor Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 731

783 F.2d 731

Sally Ann FOSTER, Plaintiff-Appellant, v. CONTINENTAL CAN CORPORATION, Donald F. Elling and Diversified Labor Service, Defendants-Appellees.

No. 84-1683.

United States Court of Appeals Seventh Circuit.

Argued April 22, 1985.

Decided Feb. 19, 1986.

Thomas H. Singer, Lysohir & Singer, South Bend, Ind., for plaintiff-appellant.

Edmond W. Foley, R. Kent Rowe, Rowe & Laderer, South Bend, Ind., for defendants-appellees.

Before ESCHBACH and POSNER, Circuit Judges, and GIBSON, Senior Circuit Judge. ^*

ESCHBACH, Circuit Judge.

Plaintiff appeals from a judgment for defendants and the denial of her motion for a new trial in a diversity negligence action governed by Indiana law. ¹ The primary questions presented by this appeal are: (1) whether there was sufficient evidence upon which to instruct the jury regarding excuse for the violation of a safety statute; (2) whether an instruction on the defendants' duty of care correctly stated Indiana law; and (3) whether the district judge abused his discretion by denying plaintiff's motion for a new trial. For the reasons stated below, we will affirm.

I

The facts of this case are straightforward. On June 14, 1981, Sally Ann Foster ("plaintiff") was driving a Ford Pinto eastbound in the right lane of U.S. Highway 30 outside of Valparaiso, Indiana. It was daylight and the weather was clear. The roadway was a relatively straight and level four-lane highway divided by a grassy median. Plaintiff was not driving in excess of Indiana's 55 miles per hour speed limit.

Donald Elling, who was employed by Diversified Labor Service ("Diversified"), was driving a Mack semi-tractor and trailer carrying containers owned by Continental Can Corporation ("Continental") (collectively "defendants"). Elling was driving in the same direction, but behind, plaintiff. He decided to pass a line of traffic moving in the right lane. He proceeded into the left lane, overtook a car driven by one Joe DeGard, and pulled alongside plaintiff's Pinto.

At that point a pick-up truck approximately one-and-a-half to two blocks ahead in the left lane braked and slowed down. Elling could have avoided hitting the pick-up by coming to a complete stop in the left lane, but did not do so because he feared a rear-end collision. Instead he decided to change lanes. He turned on his right turn signal. Plaintiff did not see the turn signals; however, DeGard, who was driving behind plaintiff, observed the lights, and a police officer, who inspected the truck after the accident, confirmed that the signals were in working order. Elling then checked his side-view mirror, but did not see plaintiff's car because it was in his blind spot. After his turn signal had been on for four to six seconds, Elling moved into the right lane. The right rear of the trailer struck the left front of the Pinto. Feeling the impact of the collision and thinking that a tire had blown out, Elling briefly returned to the left lane and then moved entirely into the right lane, hitting the Pinto again. The second collision drove the Pinto off the road. The car hit a tree, severely injuring plaintiff.

After a two-day trial, the jury returned a verdict for defendants and the district court entered judgment accordingly. The district court denied plaintiff's motion for a new trial. See Foster v. Continental Can Corp., 101 F.R.D. 710 (N.D.Ind.1984).

II

A. Excuse Instruction

Plaintiff argues, first, that there was insufficient evidence upon which to instruct the jury on whether defendants' violation of a safety statute was excused. Indiana law provides that the "driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle." Ind.Code Sec. 9-4-1-66. By returning to the right lane before he had cleared plaintiff's car, Elling violated the statute. Under Indiana law, violation of a safety statute raises a rebuttable presumption of negligence. See Davison v. Williams, 251 Ind. 448, 456-57, 242 N.E.2d 101, 105 (1968); see also Brandes v. Burbank, 613 F.2d 658, 667 (7th Cir.1980).

The district court accordingly instructed the jury that:

An act which is performed in violation of a safety statute or regulation is presumptively an act of negligence but the presumption is not conclusive and may be rebutted by showing that the act was justifiable or excusable under the circumstances. Until rebutted, the presumption of negligence is conclusive.

Where a person has disobeyed a safety statute, the violation may be excused or justified in a civil action for negligence by sustaining the burden of showing that the act might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.

This instruction correctly states Indiana law. See Davison, 251 Ind. at 457, 242 N.E.2d at 105. Nonetheless, plaintiff objected on the ground that there was no evidence to show that the violation was excusable.

In this diversity case, Indiana law determines whether the instruction was properly given. See Simmons, Inc. v. Pinkerton's, Inc., 762 F.2d 591, 595 (7th Cir.1985). Under the law of that state, an appellate court, reviewing a claim that evidence was insufficient to support the giving of an instruction, "may look only to the evidence most favorable to the appellee and any reasonable inferences to be drawn therefrom. If there is any evidence to support the instruction, it was properly given." Antcliff v. Datzman, 436 N.E.2d 114, 122 (Ind.App.1982) (emphasis added).

In this case, there is some evidence to support the excuse instruction. First, Elling testified without contradiction that a pick-up truck applied its brakes and began slowing down one-and-a-half to two blocks ahead in the left lane. Second, Elling and DeGard testified that the right turn signals of Elling's truck were on for several seconds before it proceeded into the right lane. Plaintiff did not dispute this and stated only that she did not see the signals. Third, Elling stated that he checked his side-view mirror but did not see plaintiff's car. A reasonable inference from this testimony is that Elling, when changing lanes, acted as would a person of ordinary prudence who desired to comply with the law.

Indeed, several Indiana decisions have upheld similar instructions in cases in which there was less evidence to support the instruction. ² Plaintiff relies on Stein v. Yung, 475 N.E.2d 52 (Ind.App.1985), which affirmed the denial of an instruction on Indiana's "sudden emergency" doctrine. That doctrine provides that when a person is confronted with a sudden emergency not of her own making without sufficient time to determine with certainty her best course of action, she is not held to the same accuracy of judgment which would be required of her if she had time to deliberate. In Stein, however, there was no evidence of any sudden emergency. Indiana law requires us to uphold the excuse instruction if there was any evidence to support it. See Antcliff v. Datzman, 436 N.E.2d at 122. The evidence discussed above justifies the excuse instruction given by the district court. ³

Plaintiff also suggests that the instruction misstates Indiana law and that its wording might mislead a jury. Nevertheless, plaintiff waived these objections by not raising them before the district court. See Spanish Action Committee of Chicago v. City of Chicago, 766 F.2d 315, 318 (7th Cir.1985).

B. Duty of Care Instruction

The district court also instructed the jury that

the duty imposed upon the defendants did not require them to use every possible precaution to avoid injury to the plaintiff; nor that the defendants should have employed any particular means, which it may appear after the accident would have avoided it; nor were the defendants required to make accidents impossible. The defendants were only required to use such reasonable precaution to prevent a collision with consequent injury as would have been adopted by an ordinarily prudent person under the circumstances as they existed prior to the accident.

Plaintiff objected to this instruction at trial on the ground that it misstates the duty of care set forth in Ind.Code Sec. 9-4-1-66(a). Plaintiff cites no authority in support of her argument; however, a virtually identical instruction has been approved by Indiana courts. See, e.g., Chase v. Settles, 148 Ind.App. 259, 260-61, 265 N.E.2d 57, 58 (1970).

Jury instructions must be read as a whole, rather than in isolation. See, e.g., Kelsay v. Consolidated Rail Corp., 749 F.2d 437, 449-50 (7th Cir.1984). In considering plaintiff's objection to the instruction concerning defendants' duty of care, we must consider it in context with all other instructions, including those on negligence and on reasonable and ordinary care. In this regard, we note that the district judge read to the jury the text of Ind.Code Sec. 9-4-1-66(a), and gave it the following instructions:

Negligence is defined, in its general meaning, as the failure to do what a reasonably careful and prudent person would have done under the same or like circumstances, or the doing of something which a reasonably careful and prudent person would not have done under the same or like circumstances; or, in other words, negligence is the failure to exercise reasonable and ordinary care.

Reasonable and ordinary care is such care as a reasonably careful and ordinarily prudent person would have exercised under the same or like circumstances.

A failure to exercise such care is negligence on the part of the one so failing.

Because the challenged instruction has been approved by Indiana courts and because the instructions as a whole adequately explained the concept of reasonable and ordinary care to the jury, we cannot conclude that the district judge abused his discretion in instructing the jury on defendants' duty of care...