Indianapolis Transit System v. Williams

• Decision Date: 17 May 1971
• Docket Number: No. 669,No. 2,669,2
• Citation: 269 N.E.2d 543,25 Ind.Dec. 482,148 Ind.App. 649
• Parties: INDIANAPOLIS TRANSIT SYSTEM, INC., Appellant, v. Beth Ann WILLIAMS, by her next friend William H. Williamson, Appellee. A 107
• Court: Indiana Appellate Court

Page 543

269 N.E.2d 543

148 Ind.App. 649

INDIANAPOLIS TRANSIT SYSTEM, INC., Appellant, v. Beth Ann WILLIAMS, by her next friend William H. Williamson, Appellee.

No. 669 A 107.

Appellate Court of Indiana, Division No. 2.

May 17, 1971.

Lawrence McTurnan, Bredell, Martin & McTurnan, Inadianapolis, for appellant.

William H. Williamson, Indianapolis, Elmon M. Williams, Greenwood, for appellee.

WHITE, Judge.

When plaintiff-appellee was four years of age she boarded an Indianapolis city bus operated by appellant-transit company. She later brought suit against the transit company alleging that when she got onto the bus the driver first closed the door on her head, then opened the door and she fell back to the street, and that when her mother lifted her back onto the bus step, the door was again closed on her catching her foot, the bus started up and she was dragged a short distance. Trial to a jury resulted in a verdict and judgment for plaintiff in the sum of $20,000.00. The principal injury disclosed by the evidence most favorable to plaintiff is that she was blinded in the right eye.

Defendant-appellant concedes that there is sufficient evidence to support the verdict and brings this appeal on the sole contention that the jury was improperly instructed, in that two instructions tendered by the plaintiff were given and four instructions tendered by the defendant were refused.

Turning first to the trial court's refusal to give defendant's four instructions, the argument is made that defendant was thereby denied its right to have the jury instructed on its theories of defense. Those theories, simply stated, are: 1) That there was no accident while plaintiff was boarding the bus, and 2) That at the time plaintiff boarded the bus she already had a sore eye, either from illness or prior injury.

It may be of some significance to recognize at the outset that neither of these defenses is in any sense an affirmative defense. ¹ They are nothing more than denials. The first is a very simple denial that the accident alleged in the complaint ever happened. ² The second is an argumentative denial--a denial implied by the assertion of an inconsistent fact--that the eye condition predated the boarding of the bus. Although defendant produced testimony by several witnesses in support of each of these so-called theories, the burden never shifted from plaintiff. It was never necessary to a defendant's verdict that the greater weight of the evidence favor defendant's theory. It was sufficient if the evidence was 'evenly balanced'. ³

The court's preliminary instruction No. 4 (with which neither party finds any fault) had told the jury what facts must be proved by a preponderance of the evidence in order for plaintiff to recover damages from the defendant. Among those facts were:

'2. That the defendants (sic) committed one or more of the acts or omissions charged in the Complaint as negligence; and

'4. That such acts or omissions proximately caused the plaintiff personal injuries and damage, or some of them as alleged in the Complaint.'

The instruction concluded:

'If the plaintiff establishes each of these facts by a preponderance of the evidence, she is entitled to recover from the defendants for the damages sustained as a result of such personal injuries and damage, unless the defendants established by a preponderance of the evidence that plaintiff himself (sic) was guilty of * * * (contributory negligence).'

Neither party having requested it, the trial court did not re-read the preliminary instructions at the time final instructions were read. But the court did then read, along with several others, the following final instruction (Defendant's No. 3) tendered by defendant:

'Negligence is an affirmative fact that must be established by a preponderance of the evidence. It is not sufficient for the plaintiff to show that the defendant might have been guilty of the negligence charged. The evidence must point to the fact that it was so guilty, and where testimony leaves the question unanswered and shows one of several things may have brought about the plaintiff's condition, it is not for you, the jury, to guess between these various causes and to find that the negligence of the defendant, if any, was the real cause, if there is no satisfactory foundation in the testimony for the conclusion. In other words, you have no right to return a verdict upon mere conjecture, but a satisfactory foundation therefore (sic) must be found in the evidence, and if the evidence fails to furnish such foundation, there can be no recovery against the defendant.'

That instruction tells the jury quite clearly that plaintiff must prove by a preponderance of the evidence that defendant was negligent as charged and that such negligence was the proximate cause of 'plaintiff's condition', else 'there can be no recovery against the defendant.' Nevertheless, defendant contends the court should have given its tendered instruction No. 2, which reads as follows:

'I instruct you that if you find by a preponderance of the evidence that the defendant was not negligent as charged, or if it was that such negligence was not the proximate cause of the plaintiff's condition complained of, then the plaintiff cannot recover in this action and it would be your duty to return a verdict for the defendant.'

While conceding that by tendering such an instruction it was (in effect) assuming a burden of proof not imposed on it by law, defendant nevertheless contends that the instruction is a correct statement of the law and that no instruction given by the court told the jury what to do if plaintiff failed to prove her case. Which apparently means that no instruction given told the jury it should, in such event, return a verdict for the defendant. That argument implies that a jury which had been given only two verdict forms ⁴ would not understand that if it could not say, 'We * * * find for the plaintiff * * *', it must then use the only other form it had, the one which said, 'We * * * find for the defendant.'

Furthermore, the instruction, as it would ordinarily be understood by layman or lawyer, conveys the distinct impression that, as respects defendant's alleged negligence, defendant is entitled to a verdict only, 'if you (the jury) find by a preponderance of the evidence that defendant was not negligent.' Of course the word only is not in the instruction and it may thus be technically correct in that it does not expressly rule out a defendant's verdict if the evidence is evenly balanced, yet it would seem to require extremely acute perception by the jury to enable it to recognize the possibilities implicit in what the instruction fails to say. At best, this instruction is misleading. ⁵

Defendant is correct, of course, in saying the plaintiff has no right to object to this instruction for that reason. But we are not here concerned with plaintiff's objection to the instructions. We are concerned with defendant's exception to the trial court's refusal to give it. And our conclusion is that no court should be required to give an erroneous or misleading instruction, even at the invitation of the party most likely to suffer from the error.

For the same reasons the same conclusions must be reached with respect to defendant's tendered instructions numbered 6 and 7. ⁶

Defendant's tendered instruction No. 8, however, does not contain any misleading language and appears to be a correct statement of the law. But if given it would have told the jury nothing that it had not already been told in slightly different language, by preliminary instruction No. 4 (ante, p. 546), and by defendant's final instruction No. 3 (ante, p. 546). It would merely have emphasized by repetition that the burden was on plaintiff to prove by a fair preponderance of all the evidence that defendant was negligent as charged in the complaint and that such negligence was the proximate cause of plaintiff's injuries. It was made to sound less redundant because it began by stating in the negative what had already been stated in affirmative terms and concluded with the affirmative mandate that 'your verdict should be for the defendant'. That difference, however, is of style, not of substance. ⁷

Defendant relies on Baltimore, etc., R. Co. v. Peck (1913),53 Ind.App. 281, 101 N.E. 674, in support of its argument that it was denied its right to have the jury instructed on its theory of the case. The cited case was an action against a railroad for negligently causing a fire on its right-of-way and negligently permitting the fire to escape to plaintiff's lands, burning them over. Plaintiff recovered a verdict for the fire damage to his lands after a trial in which the witnesses were evenly divided as to whether plaintiff's lands were burnt over on the date of the railroad fire or approximately one mouth earlier. Error was predicated on the trial court's refusal to give these two instructions tendered by the railroad:

'No. 2. If the fire which destroyed the plaintiff's land occurred before the right-of-way in section 6 in LaPorte fire which escaped from defendant's County, the defendant need not account for the origin of the fire which destroyed plaintiff's property, and, under such a state of the evidence, you must find for the defendant.

'No. 3. If you find from the evidence that the defendant negligently set fire to land in section 6 in LaPorte County, on or about October 1, 1908, you cannot find against the defendant in this cause if you further find from the evidence that plaintiff's land was burned over by a fire which occurred prior to the said fire which defendant allowed to escape in LaPorte County.'

We there held that the giving of a 'general' instruction that before plaintiff can recover he must prove the material averments of his complaint by a fair preponderance of the evidence did not authorize the refusal of the foregoing 'particular' instructions. Yet the error was held to be harmless ...