Jenkins v. City of Fort Wayne, 19937
| Decision Date | 11 January 1966 |
| Docket Number | No. 19937,19937 |
| Citation | 212 N.E.2d 916,139 Ind.App. 1 |
| Parties | David J. JENKINS, Appellant, v. CITY OF FORT WAYNE, Appellee. |
| Court | Indiana Appellate Court |
[139 INDAPP 2] Richard C. Verwiebe, Fort Wayne, Richard J. Sullivan, Decatur, for appellant.
Robert L. Hines, Max E. Hobbs, Fort Wayne, for appellee.
[139 INDAPP 8] FAULCONER, Judge.
Appellee has timely filed its petition for rehearing pecifying that this court erred in deciding that the giving by the trial court of defendant-appellee's Instruction No. 7 and the trial court's Instruction No. 6 was reversible error. Appellee's petition for rehearing is upon the ground that this court held the giving of said instructions was error for reasons advanced by the appellant on appeal which were other than those specified by appellant in his objections at the trial of said cause.
In reviewing the briefs we find that the specific objections made by appellant are in the record section of his brief and that appellant has summarized said objections in the argument section thereof. We further note that, although appellee now contends that we adopted the reasons urged in appellant's argument on appeal, no such alleged change was pointed out by appellee in its reply brief. Be that as it may, we are of the opinion that appellee's petition for rehearing should be denied.
As to Instruction No. 7, a review of appellant's specific objection thereto amply covered the ground upon which we held the giving of said instruction reversible error. Part of appellant's objection was, 'and said instruction leaves the impression with the Jury that failure to yield the right of way in and of itself is negligence per se.'
Instruction No. 6 was an obvious misstatement of the definition of contributory negligence as it exists in this State and, as we stated in our opinion at page 392 of 210 N.E.2d, 'its use should not be encouraged by using a fiction that the jury might have reached the same result had it been given a proper definition of contributory negligence; and, (2) By not reversing for its use, we would be substituting our judgment for that of the jury * * *.' Our opinion on this instruction has not changed.
[139 INDAPP 9] This instruction is also to be condemned as error and as prejudicial for the reason that after the definition the court instructed the jury that 'if it [contributory negligence] is shown by the evidence to exist, plaintiff cannot recover.' We cannot presume that the jury didn't take the...
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Fruehauf Trailer Division v. Thornton
...adduced at trial, and another, which encompassed a correct principle of law, was improperly refused. In Jenkins v. City of Fort Wayne (1966), 139 Ind.App. 1, 212 N.E.2d 916, two instructions were held to be prejudicial because they included misstatements of the law. However, Fruehauf does n......
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Puls v. I. & S. Trailways, Inc.
...established. Pitts and Jones V. Stewart, 138 Ind.App. 102, 186 N.E.2d 800; Jenkins v. City of Fort Wayne, 139 Ind.App. 1, 210 N.E.2d 390, 212 N.E.2d 916; Carbon v. Johnson, Ind.App., 228 N.E.2d 52. These cases definitely establish negligence on behalf of the defendant in the instant case, b......
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