Hamilton v. DuBois
| Decision Date | 15 April 1986 |
| Docket Number | No. 3-885-A-218,3-885-A-218 |
| Citation | 491 N.E.2d 213 |
| Parties | Jeryl HAMILTON and Marvin Hamilton, Appellants (Plaintiffs Below), v. William Joseph DuBOIS and Patricia DuBois, Appellees (Defendants Below). |
| Court | Indiana Appellate Court |
Jay T. Hirschauer, Hirschauer & O'Neill, Logansport, for appellants.
Branch R. Lew, Hunt, Suedhoff, Borror & Eilbacher, Fort Wayne, for appellees.
Jeryl and Marvin Hamilton (the Hamiltons) appeal from a negative jury verdict in their action to recover damages from an auto accident. The Hamiltons' car was struck by an automobile driven by William DuBois and owned by his mother, Patricia (the DuBoises). The following issues are presented to us for review:
(1) Whether the trial court erred by not withdrawing the issue of contributory negligence from the jury;
(2) Whether the trial court erred by permitting a police officer to testify that he did not issue a traffic citation in connection with the auto accident; and
(3) Whether the trial court erred by giving certain jury instructions regarding:
the duty of motorists to maintain a lookout; the foreseeability of a mechanical failure of a car; the possibility of a sudden emergency; and contributory negligence.
Affirmed.
On June 8, 1984, the DuBoises' car failed to stop at a stop sign and struck the Hamiltons' vehicle broadside. Mrs. Hamilton was injured and the damage to her car exceeded its worth. 1 At the time of the accident, DuBois testified that when he attempted to stop, his brakes suddenly and unexpectedly failed. DuBois argued that the collision, however, was proximately caused by Mrs. Hamilton's excessive speed, failure to keep a proper lookout, and failure to take evasive action. 2 At the conclusion of all the evidence, the Hamiltons moved the trial court to remove the issue of contributory negligence from the jury. See Ind. Rules of Procedure, Trial Rule 50. That motion was denied because the trial judge believed that the allegations concerning Mrs. Hamilton's negligence were sufficient so that the jury could decide the issue.
On appeal from a negative judgment where the issue of contributory negligence is raised, the standard of review was reported by Judge Conover as follows:
On appeal from a negative judgment where the issue of contributory negligence is raised, we review not only as to whether the verdict was contrary to law, but also as to whether there was sufficient evidence to sustain the verdict as to the contributory negligence issue. Brock v. Walton, (1983) Ind.App., 456 N.E.2d 1087, 1091. When reviewing a trial court's action on a T.R. 50(A) motion for judgment, we must consider only the evidence and reasonable inferences most favorable to the non-moving party. Jones v. Gleim, (1984) Ind., 468 N.E.2d 205, 206-07.
Dettman v. Sumner (1985), Ind.App., 474 N.E.2d 100, 103.
In the present case, there was much testimony regarding Mrs. Hamilton's speed at the time of the accident, and whether or not she maintained a proper lookout. These matters were vigorously contested at trial which gave rise to a reasonable inference supporting DuBois' contention that Mrs. Hamilton was contributorily negligent. Quite correctly then, the trial court denied the T.R. 50 motion, and submitted the fact questions pertaining to Mrs. Hamilton's speed and awareness to the jury for resolution. State v. Edgman (1983), 447 N.E.2d 1091, trans. den. (judgment on the evidence is not appropriate where there is substantial evidence or legitimate inference derived therefrom to support an essential element of the claim); Searcy v. Manganhas (1981), Ind.App., 415 N.E.2d 142, trans. den. (there must be a complete failure of proof before judgment on the evidence is granted). Thus, the trial court did not err in its decision to deny the T.R. 50 motion.
At trial, the police officer who investigated the accident was asked to testify. He opined, without objection by the Hamiltons, that based on his observations at the accident scene, his conversation with a mechanic who examined the brakes on the DuBois car, and his own test of the brakes, the cause of the accident was brake failure. The Hamiltons did object, however, when the officer was asked whether or not he issued a traffic citation to DuBois. This objection was overruled and the officer testified that he did not issue a ticket to DuBois for his failure to stop at the stop sign. The Hamiltons urge us to conclude that their objection was erroneously overruled.
Questions regarding the admissibility of evidence are addressed to the sound discretion of the trial court, and its determination whether to include or exclude evidence will not be reversed unless clear abuse of its discretion is demonstrated. State v. Hall (1982), Ind., 432 N.E.2d 679. (DeBruler, J., dissenting on other grounds). When confronted with an abuse of discretion claim, we determine whether the trial court's decision was clearly against the logic and effect of the facts and circumstances before it. Allen v. Allen (1985), Ind.App., 477 N.E.2d 104.
In the instant case, the trial court did not abuse its discretion by allowing the police officer to testify about the traffic ticket. The objection made by the Hamiltons at trial was that the testimony regarding the ticket was not probative because a traffic citation is a criminal and not a civil matter, and that the degree of proof required for each is different. 3 This argument did not persuade the trial court which expressly asked the Hamiltons why the officer's testimony regarding the ticket was not probative of his opinion as to the cause of the accident. Given that the officer's opinion had just been received into evidence without objection, we do not conclude that the court's decision allowing the officer's testimony regarding the ticket was clearly against the logic and effect of the facts and circumstances before it. Allen, supra. See also, State v. Edgman, supra ().
In their brief, the Hamiltons argue this issue differently than they did at trial. Now they contend that the question regarding the traffic ticket is objectionable because it calls for an opinion and conclusion of the investigating officer. Such statements are inadmissible under Lee v. Dickerson (1962), 133 Ind.App. 542, 183 N.E.2d 615 (). 4 It is well settled that on appeal the grounds for objection to the admission of evidence must be the same as the grounds asserted at trial. Gradison v. State (1973), 260 Ind. 688, 300 N.E.2d 67; Clouse v. Fielder (1982), Ind.App., 431 N.E.2d 148 reh. den. The rule from those cases applies to the present one, and accordingly, this issue must be waived. Thus, either on absence of abuse of discretion or on variance grounds, there is no cause for error by the trial court for admitting all of the police officer's testimony.
The trial court did not adopt the jury instructions tendered by either the Hamiltons or the DuBoises. Instead, the trial court prepared its own instructions, drawing heavily from those submitted by the parties. At trial and on appeal, the Hamiltons complain that four instructions were erroneously read to the jury.
The Hamiltons argue that the following instruction was erroneously given because there was no basis for it in the evidence.
It is the duty of motorists on public highways to keep and maintain a lookout for that which is visible or that which in the exercise of due care would be visible.
The failure of a motorist to maintain a lookout in such a manner as to enable them to see what a person of ordinary prudence under the same or similar circumstances would have seen may constitute negligence.
(S.R. 2).
As discussed in Thornton v. Pender (1978), 268 Ind. 540, 377 N.E.2d 613, reh. den., every motorist has a duty to maintain a proper lookout. Whether a driver complied with the standard of ordinary care to keep a lookout under the facts of the case is a question for the jury. Id., 377 N.E.2d at 617; See also, Brock v. Walton (1983), 456 N.E.2d 1087 (Buchanan, C.J., dissenting).
In the instant case, the record reveals that Mrs. Hamilton was familiar with the intersection, which is partially obscured from view by surrounding buildings. At the time of the accident, she testified that she did not notice the DuBois car until it struck her car, nor did she hear the DuBois car approaching even though her car window was open. Under these circumstances, there was a basis in the evidence for the giving of Instruction 13.
In addition, we note that since Instruction 13 correctly states the law, any error in giving the instruction based on a lack of evidence is harmless. Chaffee v. Clark Equipment Co. (1985), 480 N.E.2d 236, reh. den. (Staton, P.J., dissenting on other grounds).
The Hamiltons contend that the trial court also erroneously read Instruction 15 to the jury. That instruction is as follows:
An individual is not bound to anticipate or foresee any mechanical failure on the part of his automobile which was not outwardly apparent in the exercise of reasonable care or which he could not reasonably anticipate. If you find that the accident in question was the proximate result of a brake failure which could not be anticipated, then such brake failure may not constitute negligence by the defendants.
(S.R. 3).
In support of their contention, the Hamiltons refer us to several cases which for various reasons, are not persuasive. The instruction in Stull v. Davidson (1955), 125 Ind.App. 565, 127 N.E.2d 130, reh. den. (sitting in banc) stated that the victim of a car accident was not bound to foresee mechanical failure of the other car. The present instruction addresses not the victim, but rather the...
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