Hendrix v. Harbelis

• Decision Date: 17 October 1967
• Docket Number: No. 1067S104,1067S104
• Citation: 248 Ind. 619,230 N.E.2d 315
• Parties: Thomas HENDRIX, Appellant, v. Peter HARBELIS, Appellee.
• Court: Indiana Supreme Court

Page 315

230 N.E.2d 315

248 Ind. 619

Thomas HENDRIX, Appellant, v. Peter HARBELIS, Appellee.

No. 1067S104.

Supreme Court of Indiana.

Oct. 17, 1967.

Fred M. Stults, Jr., Gary, for appellant.

Barce, Barce & Vann, Kentland, Chris J. Pappas, Gary, for appellee.

ARTERBURN, Judge.

This case is here on petition to transfer from the Appellate Court. (See opinion reported in 209 N.E.2d 906).

It is an action by plaintiff-appellee to recover damages for personal injuries which he allegedly sustained while crossing an intersection in a crosswalk for pedestrians in the City of Gary, Indiana.

The evidence in the case is brief, being that presented only by the plaintiff. It may be summarized as follows:

'That Peter Harbelis, the appellee, on April 27, 1959, was walking along a two-lane, north-south street, Lincoln Street; that upon reaching the intersection of Lincoln Street and Fourth Avenue, a four-lane, east-west highway, he stopped; that appellee 'looked around' on Fourth Avenue and Lincoln Street and saw no traffic; that appellee than proceeded across Fourth Avenue in the crosswalk and as he reached a point approximately in middle of the two east-bound lanes the appellant collided with him, or in the words of the appellee there was a fellow 'coming running hit me'; that said collision threw him down, that he had blood on his arms and legs; that his right forearm was injured and that the right side of his coat was torn; that 'he hit me back here with his car'; that the area of the accident was residential in nature; that there was a stop sign for southbound traffic on Lincoln Street requiring vehicles traveling south to stop before entering Fourth Avenue; that there was no electric traffic control signal at the intersection in question; there was one a block to the east of the intersection concerned and another two blocks to the west of the intersection governing movement of traffic on Fourth Avenue. There was also testimony establishing the nature and extent of the injuries sustained by the appellee.'

The defendant-appellant admitted in his answer that he was the owner of the automobile and was driving it at the time and place of the accident.

The trial was by jury. At the close of appellee's evidence, appellant filed a motion for a directed verdict, which the court overruled. Appellant renewed this motion at the close of all the evidence, and the court also overruled the motion. The jury returned a verdict for the appellee in the amount of $10,000.00. Appellant relies upon the following assigned errors in his motion for a new trial:

1. The verdict of the jury is not sustained by sufficient evidence and is contrary to law.

2. The court erred in overruling appellant's motion for a directed verdict.

3. The court erred in giving certain instructions tendered by the plaintiff and refusing to give certain designated instructions tendered by the defendant, and also refusing to submit to the jury certain interrogatories tendered by the defendant.

In considering the first two items above, we must ask these questions: What duty runs from an automobile driver to a pedestrian crossing the street within a crosswalk; and was a prima facie case made out by the plaintiff showing a breach of the duty in the present case? We will give consideration to this question first, since a solution of the same will, to a large extent, eliminate many of the other remaining questions relating to the instructions and the interrogatories.

Burns' § 47--2032(a) reads as follows:

'When traffic control signals are not in place or not in operation, the driver or vehicle shall yield the right-of-way, slowing down or stopping if 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 (§ 47--2033(b)).'

In our opinion, this statute was applicable under the facts here presented. The plaintiff did not leave the curb suddenly before entering the crosswalk of the street, but rather he stopped, he says, and 'looked around' both on Fourth Avenue and Lincoln Street, and he saw no traffic. He then left the sidewalk and entered the crosswalk of the street. Under such circumstances, the plaintiff--under the statute--was in a place where he had a right to be, and under the statute the defendant had a duty to yield the right-of-way to the plaintiff as a pedestrian. The evidence, however, shows clearly that the defendant did not yield, but rather struck down the plaintiff in the crosswalk. To us, this constitutes a prima facie violation of the duty the statute imposes.

In Gary Railways v. Dillon (1950), 228 Ind. 558 562, 92 N.E.2d 720, 722 this Court, in constructing the same statute under a situation where the plaintiff had slipped in the cross-walk and was lying in the street and was struck by the defendant's bus, said:

'In failing to yield the right of way at the intersection to the plaintiff, 'who was crossing at a crosswalk at an intersection where there were no traffic signals in operation' clearly imposes a violation of the statute in question.'

We see no difference in the duty imposed in this instance than that of a case where a pedestrian is struck in a crosswalk where electric traffic control signals are in operation, as provided in Burns' § 47--1905(a). Novak, Admx., etc. v. Chicago & C. Dist. Tr. Co., et al. (1956), 235 Ind. 489, 135 N.E.2d 1; Larkins v. Kohlmeyer (1951), 229 Ind. 391, 98 N.E.2d 896.

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