Guion v. Terre Haute, Indianapolis & Eastern Traction Co.

• Decision Date: 13 March 1924
• Docket Number: No. 11582.,11582.
• Citation: 143 N.E. 20,82 Ind.App. 458
• Court: Indiana Appellate Court
• Parties: GUION v. TERRE HAUTE, INDIANAPOLIS & EASTERN TRACTION CO.

82 Ind.App. 458

143 N.E. 20

GUION

v.TERRE HAUTE, INDIANAPOLIS & EASTERN TRACTION CO.^*

No. 11582.

Appellate Court of Indiana, Division No. 1.

March 13, 1924.

Appeal from Circuit Court, Hendricks County; Z. E. Dougan, Judge.

Action by Roy Guion against the Terre Haute, Indianapolis & Eastern Traction Company. Judgment for defendant, and plaintiff appeals. Affirmed.Emsley Johnson and Beckett & Beckett, all of Indianapolis, for appellant.

M E. Foley, of Indianapolis, and Geo. W. Brill and O. E. Gulley, both of Danville, for appellee.

BATMAN, J.

Appellant seeks to recover damages for personal injuries, sustained in a collision between an automobile driven by him and one of appellee's cars, at a crossing of a public highway by the latter's track. The amended complaint is in a single paragraph, and is based on alleged negligence of appellee in the operation of said car, as it approached and passed over said crossing. The complaint was answered by a general denial, after which the cause was submitted to a jury for trial, resulting in a verdict and judgment for appellee. Appellant filed a motion for a new trial, which was overruled, and this appeal followed, based on the action of the court in so ruling.

[1] The only reasons upon which appellant relies, in support of his contention that the court erred in overruling his motion for a new trial, relate to the action of the court in giving certain instructions. Instruction No. 3, given by the court on its own motion, reads as follows:

“The law interprets ordinary care to be that degree of care which a person of ordinary prudence under the particular circumstances is presumed to exercise to avoid injury. Such care is required to be in proportion to the danger to be avoided and the fatal consequences that may result from the neglect.”

Appellant contends that this instruction contains an erroneous definition of ordinary care, because of the presence of the last sentence therein. We do not so view it. If ordinary care is such as the first sentence in the instruction states, which appellant does not challenge, we may add, as a matter of common knowledge, that the quantum of care used by persons of ordinary prudence, when acting as such, is in proportion to the dangers to be avoided, and the injuries that may result, if such care is not observed. Union T. Co. v. Berry (1919) 188 Ind. 514, 121 N. E. 655, 124 N. E. 737. It follows, therefore, that, where such a quantum of care is not shown, it cannot be said that ordinary care was exercised. If, however, the care used is of the quantum stated, the party upon whom its exercise devolves has discharged his full duty in that regard, although an injury may have been sustained, which might have been avoided by the exercise of a higher degree, or a greater quantum of care.

[2][3] Appellant complains of the use of the phrase “fatal consequences” as used in said last sentence, and contends that its use therein renders the instruction erroneous, citing the recent case of Terre Haute, etc., T. Co. v. Phillips (1921) 191 Ind. 374, 132 N. E. 740. The instruction involved in that case is distinguishable from the instruction in the instant case in this, that the phrase in question in the case cited was used in connection with a statement as to the degree of care required of one of the parties, which was open to a construction that ordinary care might not suffice, while in the instant case the phrase is used in an instruction, which is one of a series in which the degree of care was properly defined as “ordinarycare,” and follows a sentence which gives a standard by which such care is to be measured, and therefore clearly relates to the quantum rather than the degree of care. Appellant contends that the effect of the case cited is to eliminate the use of such phrase in proper instructions, involving the question of due care in actions of this kind, notwithstanding the repeated approval of instructions containing the same. We cannot agree that the case cited has such an effect, as there is nothing inherently objectionable in the phrase, but only in its improper use, as we have indicated. Certainly a person charged with the duty of exercising ordinary care for his own safety, or the safety of another, will not have discharged that duty unless he shall have taken into account the fatal, as well as the less serious, consequences that are liable to happen from a known danger, and shall have exercised a quantum of care proportionate thereto. It is finally contended that said last sentence informed the jury that appellant's care must be measured by the fatal consequences, after they were known to have occurred, and not by those he should have apprehended prior to the collision. The concluding portion of said sentence discloses that the jury was not so informed thereby. We conclude that the giving of said instruction, although not as well phrased as it might have been, was not reversible error.

[4] It is contended that the court erred in giving instruction No. 1, requested by appellee, for the following reasons: (1) It omits the element of proximate cause in defining contributory negligence. (2) It fails to state that appellant's negligence, in order to be such, must have concurred and co-operated with that of appellee. In support of the first reason it is urged that said instruction may have led the jury to return a verdict against appellant, if it found that he had been guilty of any negligence, however remote, which merely helped to produce his injury, without contributing proximately thereto. It suffices to say in answer to this that, if said instruction is erroneous in the particular first stated, appellant has failed to point out any evidence of remote negligence to which the jury may have applied the instruction, and thereby harmed appellant, as was his duty to do, if he seeks a reversal because the instruction would have permitted such an application. Pittsburgh, etc., R. Co. v. Reed (1909) 44 Ind. App. 635, 88 N. E. 1080;Sanitary Can Co. v. McKinney (1912) 52 Ind. App. 379, 100 N. E. 785;Inland Steel Co. v. Gillespie (1913) 181 Ind. 633, 104 N. E. 76;Evansville, etc., R. Co. v. Hoffman (1917) 67 Ind. App. 571, 118 N. E. 151. The instruction clearly precludes the idea that negligence on the part of appellant, in order to be contributory, must have been the sole cause of the injury, and, when considered in connection with other instructions given, it is apparent that the jury must have understood that appellant's negligence, in order to be contributory, must have concurred and co-operated with the only other negligence involved, viz. that of appellee. The second reason stated is therefore unavailing. We conclude that appellant has failed to show reversible error in giving said instruction.

[5][6] Instruction No. 2, given by the court on request of appellee, is challenged on the following grounds:

(1) It calls the jury's attention to the fact that the presence of a railroad crossing is a warning of danger when such a crossing is not involved in this action.

(2) It places imperative duties upon a person about to cross a railroad track, which he is required to perform, although ordinary care might not so require.

(3) It places a higher duty on appellant than the law requires, by the use of the italicized words in the following statement therein:

“It is the duty of a person about to cross railroad tracks to use his eyes and ears *** in such manner as that a...