Jones v. Gleim
Decision Date | 22 March 1984 |
Docket Number | No. 3-583A141,3-583A141 |
Citation | 460 N.E.2d 1017 |
Parties | Esther JONES, Appellant (Plaintiff Below), v. Phillip GLEIM, Appellee (Defendant Below). |
Court | Indiana Appellate Court |
Michael W. Bosch, Hammond, for appellant.
Robert F. Parker, Beckman, Kelly & Smith, Hammond, for appellee.
Esther Jones sued Phillip Gleim seeking to recover for injuries she suffered when she was struck by a car driven by Gleim. After the close of Jones' evidence, the trial court granted Gleim's motion for judgment on the evidence. Jones appeals, contending that the trial court erred in determining that she was contributorily negligent as a matter of law. 1 Reversed and remanded.
The evidence and inferences most favorable to Jones are as follows: The accident occurred shortly after 7:00 p.m. on October 7, 1977. Jones was on her way to St. Margaret's Hospital in Hammond to visit a friend. Another friend, Carlos Godines, gave Jones a ride to the hospital. When they reached the hospital, Godines' car was facing east on Douglas Street. The hospital is on the north side of the street. Godines stopped directly across from the hospital entrance. Jones got out of the car and walked back behind the car. She looked both ways, saw no cars approaching, and started to run across the street. As she was crossing the street, she was struck by the right front bumper of a car driven by Gleim, which was traveling west on Douglas Street. Jones was not crossing within a marked crosswalk or at an intersection. At the time of the accident, visibility was poor. It was dusk and raining heavily. Although Gleim testified that his car headlights were on, Jones and Godines testified that they looked both ways and saw no cars approaching.
Carroll v. Ely (1980), Ind.App., 398 N.E.2d 1364, 1365.
Jones contends that the trial court erred in determining that she was contributorily negligent as a matter of law. She argues that the evidence and inferences most favorable to her show that her conduct was reasonable--she looked both ways, saw no cars, and started across the street. On the other hand, Gleim argues that Jones was guilty of contributory negligence as a matter of law because: (1) Jones failed to yield the right of way to Gleim as required by statute; and (2) Jones failed to continue to look for oncoming cars as she was running across the street.
IC 1976, 9-4-1-88(a) provides:
"(a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway."
(West's A.I.C.). IC 1976, 9-4-1-87(b) provides:
"(b) 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 as to constitute an immediate hazard."
(West's A.I.C.). Gleim asserts that because Jones violated these statutes when she ran in front of his car, she was negligent as a matter of law. However, while Jones did violate the statutes, that alone does not make her guilty of contributory negligence as a matter of law.
Hendrix v. Harbelis (1967), 248 Ind. 619, 230 N.E.2d 315, 318. After a violation of a traffic statute has been shown, the burden then shifts to the accused to come forward with evidence that compliance was impossible or excusable. Id. In this case, Jones could be expected to comply with these statutes only if Gleim's car would have been visible to an ordinary person.
Gleim correctly points out that if visibility that evening was sufficient for one to see his oncoming car, Jones would be charged with constructive knowledge of the car's presence and her failure to see the car would not excuse her violation of traffic laws. See Anderson v. Pre-Fab Transit Co., Inc. (1980), Ind.App., 409 N.E.2d 1157; and Frankfort v. Owens (1978), 171 Ind.App. 566, 358 N.E.2d 184. In the alternative, Gleim argues that if visibility that evening was so poor that it was impossible to see his oncoming car, then Jones was negligent in even attempting to cross the street. In support of this assertion, Gleim relies on Smith v. Diamond (1981), Ind.App., 421 N.E.2d 1172.
Thus, Gleim asserts that regardless of whether visibility that evening was sufficient for his car to be seen or so poor that it was impossible to see the car approaching, Jones was negligent in attempting to cross the street when she did; she either should have seen the car or should have recognized that it was impossible to see an oncoming car.
Unfortunately, this argument ignores the possibility that a jury could believe Jones' and Godines' testimony that they looked for cars and saw none approaching, disbelieve Gleim's testimony that his headlights were on, and infer that Jones and Godines failed to see Gleim's car approaching because its headlights were off when they should have been turned on. Jones' violation of IC 9-4-1-87(b) and IC 9-4-1-88(a) could then be excused and would not constitute negligence. Because the facts and inferences to be drawn therefrom are not undisputed, whether Jones' conduct in attempting to cross the street when she did constitutes contributory negligence is a question for the jury.
We are also unpersuaded by Gleim's assertion that Jones was negligent as a matter of law because she failed to continue to look for cars as she was crossing the street. This Court has previously held that such failure to keep a lookout does not constitute negligence as a matter of law. Fields v. Hahn (1944), 115 Ind.App. 365, 57 N.E.2d 955 ( ). The common law does not absolutely require a pedestrian to take any...
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Jones v. Gleim
...that Jones was contributorily negligent as a matter of law and reversed the trial court's judgment. Jones v. Gleim, (1984) Ind.App., 460 N.E.2d 1017 (Hoffman, P.J., dissenting). We now grant transfer and reverse. The opinion and decision of the Court of Appeals are hereby vacated, and defen......