Huey v. Milligan

• Decision Date: 21 June 1961
• Docket Number: No. 30112,30112
• Citation: 242 Ind. 93,175 N.E.2d 698
• Parties: Madge HUEY, Appellant, v. Glen Elmer MILLIGAN, Appellee.
• Court: Indiana Supreme Court

Page 698

175 N.E.2d 698

242 Ind. 93

Madge HUEY, Appellant, v. Glen Elmer MILLIGAN, Appellee.

No. 30112.

Supreme Court of Indiana.

June 21, 1961.

Rehearing Denied Sept. 20, 1961.

Homer Ingram, Newport, N. George Nasser, Hansford C. Mann, Buena Chaney, Terre Haute, for appellant.

Dix, Dix, Patrick & Ratcliffe, Thomas M. Patrick, Terre Haute, for appellee.

BOBBITT, Judge.

This case comes to us on petition to transfer from the Appellate Court under Acts 1933, ch. 151, § 1, p. 800, being § 4-215, Burns' 1946 Replacement. See: Huey v. Milligan, 1960, 171 N.E.2d 134; 172 N.E.2d 871, for opinions of the Appellate Court.

Appellant brought this action for damages for personal injuries resulting from a collision between an automobile driven by her and one driven by appellee. Trial was by jury which returned a verdict for the defendant-appellee herein.

The determinative question here is presented by Specification No. 4(f) of appellant's motion for a new trial which alleges that the trial court committed an error of law by 'giving and reading to the jury defendant's tendered instruction No. 3 over the specific written objection previously filed by the plaintiff * * *.'

Among plaintiff-appellant's objections to the giving of such instruction is that it is 'a mandatory instruction which orders the jury to return a verdict for the defendant if the plaintiff was guilty of any negligence which 'proximately contributed in the slightest degree to the collision.'' (Our italics.)

Appellant asserts that a negligent act of the plaintiff must be a substantial factor in, or materially contribute to, producing the injury of which complaint is made in order to constitute a proximate cause thereof.

Generally, the same test of causation is applied in determining whether the conduct of the plaintiff proximately contributed to the injury as is applied in determining whether the conduct of the defendant is the proximate cause of the injury. Earle v. Porter, 1942, 112 Ind.App. 71, 78, 40 N.E.2d 381 (Transfer denied); Hedgecock v. Orlosky, 1942, 220 Ind. 390, 396, 44 N.E.2d 93; Pennsylvania Company v. Gallentine, 1881, 77 Ind. 322, 328; City of Michigan City v. Rudolph, 1938, 104 Ind.App. 643, 652, 12 N.E.2d 970; 38 Am.Jur., Negligence, § 213, p. 898; 21 I.L.E. Negligence § 88, p. 345; See also: Annotation, 102 A.L.R. at page 411.

Support for appellee's position here is based upon the approval of an instruction in Bain, Admx. v. Mattmiller, 1938, 213 Ind. 549, 556, 13 N.E.2d 712, 715, as follows:

"If Charles Bain, plaintiff's decedent herein was guilty of any negligence, no matter how slight, which proximately contributed to the injury and death referred to in plaintiff's complaint, your verdict must be for the defendant." (Our italics.)

In sustaining such instruction this court, at page 556 of 213 Ind., at page 715 of 13 N.E.2d, said:

'As we read this instruction it is in harmony with the law as stated in cases cited. ¹ If the plaintiff was guilty of any negligence, no matter how slight, etc., [which proximately contributed to the injury] he cannot recover.' (Our italics.)

There are no degrees of negligence in Indiana, and if the plaintiff in the present case was guilty of any negligence, however slight, and such negligence proximately contributed to her injury, she cannot recover.

We do not construe Instruction No. 3 herein as being similar to the instruction containing the words 'guilty of any negligence, no matter how slight,' involved in Bain, Admx. v. Mattmiller, supra.

After setting out the negligent act, the instruction in the present case states, 'if * * * such negligence * * * proximately contributed in the slightest * * *.' (Our italics.)

'In the slightest' here modifies 'contributed' and refers to the causal relation between the plaintiff-appellant's negligence and the injury--and does not refer to or indicate a degree of negligence. There is only one degree of causal relation in Indiana, and that is proximate, direct or material.

We do not comprehend how plaintiff-appellant's negligence could proximately contribute 'in the slightest' to her injury. If it is proximate, it is immediate and direct as opposed to remote, indirect or slight.

The appeal courts of this State have, from time to time, confused the rule pertaining to the question of negligence with that relating to the causation or the contribution of the negligent act of the plaintiff necessary to sustain a defense of contributory negligence.

Justice Cardozo recognized the distinction between negligence and causation when, in Martin v. Herzog, 1920, 228 N.Y. 164, 126 N.E. 814, 816, he said:

'We must be on our guard, however, against confusing the question of negligence with that of the causal connection between the negligence and the injury. A defendant who travels without lights is not to pay damages for his fault, unless the absence of lights is the cause of the disaster. A plaintiff who travels without them is not to forfeit the right to damages, unless the absence of lights is at least a contributing cause of the disaster. To say that conduct is negligence is not to say that it is always contributory negligence.'

In the hope of lending some clarification to this question, we shall attempt to distinguish those cases which appear to lend support to appellee's position here.

A Lake Superior Court ² case is one of two authorities cited in 2 Reid's Branson Instructions to Juries, 1960 Replacement, § 341, p. 123, in support of an instruction containing the words 'contributed proximately in the slightest degree to the cause of the collision.' This unreported case furnishes no authority for the approval of such an instruction by this court.

Livingston v. Rice, 1933, 96 Ind.App. 176, 184 N.E. 583, is the other authority cited for the same instruction. An examination of this case discloses that an instruction was permitted to stand which placed upon the defendant the burden of proving that the plaintiff's negligence was the proximate cause of his injury. The Appellate Court, at page 178 of 96 Ind.App., at page 584, of 184 N.E., stated:

'If this instruction stood alone and none other had been given on the subject of contributory negligence, the giving of such instruction would be available error, as it is well settled that any negligence on the part of the injured party which helped to bring about and cause the injury complained of, precludes such party from recovering damages on account of any such injury.'

Negligence with 'helped to bring about' and cause an injury would be such as materially, directly or proximately contributed to the injury. Cousins v. Glassburn, 1940, 216 Ind. 431, 438, 24 N.E.2d 1013. We find nothing in Livingston v. Rice, supra, which, in our judgment, supports the phrase 'in the slightest degree,' when used in connection with the causation of an injury.

In City of Indianapolis v. Cook, 1884, 99 Ind. 10, 11, it is said:

'In an action like the present, the law is well settled that there can be no recovery if the plaintiff's negligence or want of care contributed in any way to the injury complained of. Pennsylvania Co. v. Gallentine, 77 Ind. 322, and authorities cited on p. 329.' (Our italics.)

A careful examination of the Gallentine case and cases therein cited on page 329 of 77 Ind. has convinced us that they in no manner support the statement as above quoted from the Cook case.

In our judgment neither Gallentine nor Cook lends support to appellee's position here. The cases cited on page 329 of 77 Ind. either pertain wholly to procedure or use the words directly, proximately, or immediately when describing causation.

City of Indianapolis v. Cook, supra, 1884, 99 Ind. 10, was followed in Indianapolis Traction & Terminal Co. v. Crawley, 1912, 51 Ind.App. 357, 362, 96 N.E. 392, without the citing of further authority.

Pawlisch v. Atkins, 1933, 96 Ind.App. 132, 141, 182 N.E. 636, which cites City of Indianapolis v. Cook, supra, and Indianapolis Traction, etc., Co. v. Crawley, supra, held that the use of the word 'material' in an instruction which stated that to hold the plaintiff guilty of contributory negligence he must have done something whereby he 'materially contributed to produce the injuries complained of' was error. The court in that case also confused the question of negligence with the causal connection between the negligence and the injury.

Pawlisch v. Atkins, supra, 1933, 96 Ind.App. 132, 182 N.E. 636, as it pertained to causation was, in our opinion, overruled by Cousins v. Glassburn, supra, 1940, 216 Ind. 431, at pages 438, 439, 24 N.E.2d 1013, at page 1016, where it is said:

'The appellant insists that the use of the word 'materially' instead of the word 'proximately' constitutes reversible error. Webster's New International Dictionary gives the following common definition for the word 'materially,' 'In an important manner or degree; substantially.' Ballentine's Law Dictionary states that 'to contribute is to help to cause or to furnish some aid in causing the result.' The failure to use the word 'proximate' in defining 'contributory negligence' does not constitute error if other words are used which exclude the idea of a remote, indirect or insignificant causal connection between the negligence and the accident. The question of contributory negligence does not arise except in a case where it has been shown that the defendant was guilty of negligence which was a proximate cause of the injury. To establish the defense of contributory negligence it is, therefore, not necessary to show that the plaintiff's negligence was the sole proximate cause of the injury but only that it was a concurring or cooperating proximate cause.'

The foregoing seems to us to be a well-reasoned statement of what is necessary to show a causal connection between the negligence of the plaintiff and the injury of which complaint is made.

While the decisions of both this and the Appellate Court contain much loose language and...