Frankfort v. Owens
| Citation | 358 N.E.2d 184,171 Ind.App. 566 |
| Decision Date | 22 December 1976 |
| Docket Number | No. 2--375A53,2--375A53 |
| Parties | Martin FRANKFORT and Leona Frankfort, Appellants (Plaintiffs below), v. William S. OWENS et al., Appellees (Defendants below). |
| Court | Court of Appeals of Indiana |
Earl C. Townsend, Jr., Indianapolis, for appellants; Townsend, Hovde & Townsend, Indianapolis, of counsel.
Charles Johnson, Marshall E. Williams, Richard O. Creedon, Indianapolis, Glenn E. Davis, Kitley, Schreckengast & Davis, Beech Grove, for appellees.
STATEMENT OF THE CASE:
This case was transferred to this office from the Second District to help eliminate the disparity in caseloads among the Districts.
Plaintiffs-appellants, Martin and Leona Frankfort (Frankfort) brought suit against defendants-appellees, Willaim S. Owens (Owens), Indiana Bell Telephone Company, Inc. (Indiana Bell), and Motorcycle Escort Service, Inc. (Escort), alleging that because of appellees' negligence Frankfort suffered physical injuries as a result of being struck by a car. Judgment was entered on the jury's verdict in favor of appellees and this appeal followed.
We affirm.
FACTS:
The facts necessary for our disposition of this appeal are as follows:
Frankfort was struck by an automobile driven by Owens as he was attempting to cross Washington Street on the south side of the Indianapolis City-County Building. At this location, Washington Street has four traffic lanes running east, and four traffic lanes running west, separated by a raised concrete center strip.
Frankfort was proceeding in a southerly direction across the street before he was struck while walking in a marked pedestrian crosswalk.
An Indiana Bell service truck was parked facing west in the third lane of westbound traffic with its front end partially in the pedestrian crosswalk. Indiana Bell had employed Escort to provide a uniformed employee to direct traffic around the parked vehicle and Escort's employee, dressed in uniform, was directing westbound traffic at the time when Frankfort was struck.
When Frankfort reached the Indiana Bell service truck he apparently took one step out into the fourth westbound traffic lane to ascertain if there was any oncoming traffic. At this point he caught sight of the Escort employee who was directing traffic around the parked service truck. Thinking all was clear, Frankfort proceeded across the fourth westbound traffic lane where he was struck and injured by a car being driven by Owens. Owens testified that he proceeded slowly around the parked Indiana Bell service truck only after he received the Escort employee's signal to proceed. Further, that Frankfort stepped suddenly out in front of him and he was unable to avoid hitting Frankfort.
ISSUES:
1. Did the trial court err in failing to grant Frankfort a new trial because of defense counsel's misconduct?
2. Was the verdict contrary to law?
3. Did the trial court commit reversible error in giving, and in refusing to give, certain instructions to the jury?
Frankfort argues that the judgment of the trial court should be reversed because of certain prejudicial remarks made by Owens' defense counsel. The record discloses the remarks complained of were as follows 'Q. Sam, you did not actually see the accident?
A. No.
Q. All you know is what someone told you?
A. All I told was what I saw.
Q. You said you saw another car. You said part of it was on the median strip?
A. Yes.
Q. Also part was in the cross walk then?
A. Yes.
Q. Do you have a good horse in the third race today?
MR. TOWNSEND: I object.
A. Yes, I have a couple.
'Q. Do you happen to remember what kind of car that was?
A. No.
Q. It is not important. Is that a fair accurate representation of my car as it was parked in that cross walk at that time?
A. Yes, I saw you take the picture.
Mr. TOWNSEND: Plaintiff offers in evidence what has been marked for identification as plaintiffs' Exhibit No. 106.
MR. JOHNSON: Is that one of Mr. Townsend's five Rolls Royces?
A. No, he has gone broke--he has not had any cases now.
* * *'
We are of the opinion that the remarks made by defense counsel, although unfortunate, do not require a reversal of this cause for the reason that Frankfort has failed to preserve any error for our review.
The steps necessary to preserve a point of error founded upon trial counsel's misconduct were stated in the case of Raisor v. Kelly (1972), 152 Ind.App. 198, 282 N.E.2d 871, 873 (transfer denied) as follows:
'. . . In the language of a leading case, Lawson v. Cole (1953), 124 Ind.App. 89, 115 N.E.2d 134:
'Our courts have laid down the procedure which must be followed in order to reserve any question for review on appeal relating to misconduct of counsel. The steps in this procedure . . . are: (1) 'to promptly interpose and state their objection, if reasonably required, to the objectionable language or argument, and request the court to so instruct the jury as to counteract any harmful effect of such language or argument, and if granted, and such instructions were not sufficient to cure the error, follow such action by a motion to have the submission set aside; (2) to promptly object to the improper language or argument of counsel, and move to set aside the submission, stating reasons why the harm done could not be cured by any action the court might take in the matter."
* * *' The reason for the rule requiring counsel to take the above steps was stated in White v. Crow (1964), 245 Ind. 276, 198 N.E.2d 222 at p. 227 as follows:
In the case at bar, the record discloses that Frankfort neither moved to strike out the claimed improper remarks for the purpose of objection, neither did he move for a mistrial, nor did he give the trial court reasons why a jury admonishment would not be sufficient to correct any error occasioned by defense counsel's remarks.
Frankfort cites Troxel v. Otto (1972), 153 Ind.App. 437, 287 N.E.2d 791, as authority for his contention that his cause should be reversed on the foregoing ground. As we read Troxel, supra, that case holds that an attorney who repeatedly refers to matters which have been excluded from evidence by the trial court is guilty of clear misconduct with resulting prejudice to the adverse party being presumed. Also, such conduct would be a violation of the Code of Professional Responsibility, Canon 7, and Ethical Consideration 7--25. The record before us does not disclose such blatant misconduct as appeared in Troxel, supra, and therefore we are of the opinion that the rules laid down for preserving error in Raisor v. Kelly, supra, are controlling.
ISSUE TWO:
Frankfort argues that the jury's verdict, and the judgment entered thereon, was contrary to law.
IC 1971, 9--4--1--87 (Burns Code Ed.) provides as follows:
'Pedestrian's right-of-way at crosswalks.--(a) When traffic control signals are not in place or not in operation, the driver of vehicle shall yield the right-of-way, slowing down or stopping if the 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. This provision shall not apply under the conditions stated in section 84--b (subsection (b) of 9--4--1--88).
(b) Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.' (Our emphasis.)
Therefore, under this statute, a pedestrian can be contributorily negligent under the following circumstances. First, when he leaves a curb and walks or runs into the path of a vehicle which is so close that it is impossible for the driver to yield. Second, when he leaves any other place of safety and walks or runs into the path of a vehicle which is so close that it is impossible for the driver to yield.
Frankfort contends that he was on the half of the roadway on which Owens' vehicle was traveling, and he did not suddenly leave a curb. Frankfort continues his argument by urging that since the parked Indiana Bell service truck was not a place of safety, and since there was no evidence tending to show him as being contributorily negligent the trial court erred in not finding the jury's verdict contrary to law. Frankfort cites a...
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