Kiger v. Arco Auto Carriers, Inc.
| Decision Date | 26 March 1969 |
| Docket Number | No. 1167A87,No. 2,1167A87,2 |
| Citation | 144 Ind.App. 239,245 N.E.2d 677 |
| Parties | Orville L. KIGER, by his Guardian, Clarence Kiger, Appellant, v. ARCO AUTO CARRIERS, INC., Appellee |
| Court | Indiana Appellate Court |
Kizer & Neu, Plymouth, for appellant.
Crumpacker, May, Levy & Searer, South Bend, for appellee.
This is an appeal from a judgment for the Defendant-Appellee in an action brought to recover damages received by the Plaintiff-Appellant's ward.
The Appellant's ward was injured when the car in which he was riding was struck broadside by a truck owned by the Defendant-Appellee and driven by one of its agents.
The collision occurred at a point where U.S. Highway 6 and Indiana State Road 331 diverge at the east edge of Bremen, Indiana.
Appellee's truck was being driven east through Bremen, Indiana, on the combined highways of U.S. Highway 6 and Indiana State Road 331. The Appellant's ward's car traveled west on Indiana 331 and stopped behind another car at the intersection. The first car pulled out as the truck was descending the hill toward the intersection.
The evidence most favorable to the Appellee as to circumstances of the accident was given by the driver of Appellee's truck. He testified as follows:
'The second car in line on 331 sat there after the first car pulled out into the intersection and then all at once pulled out right in front of me.
There was also evidence that the driver of the car in which Appellant's ward was riding was intoxicated.
Upon judgment for the Appellee, Appellant filed a Motion for New Trial and assigns as error the overruling of that Motion. The first alleged error raised by Appellant's brief concerns Defendant's tendered instruction number 1, herein set out:
'If you should find, by a fair preponderance of all of the evidence in this case, that at the time and place alleged in the plaintiff's complaint, the driver of the defendant truck, Robert Wagner, was placed in a position of hazard and peril through no negligence on his part which required Robert Wagner to act in a sudden emergency to avoid colliding with another vehicle, then I instruct you that in such an event Robert Wagner would be required to act only in such a manner as an ordinary and prudent person would act under the same or similar circumstances.
'And, if you should find that Robert Wagner did, under such facts and circumstances, act as an ordinary reasonable and prudent person would act under same or similar circumstances, when being confronted by such an emergency, then and in that event the plaintiff cannot recover from the defendant herein, and your verdict should be for the defendant and against the plaintiff.'
The Appellant does not contend that the instruction misstates the doctrine of 'sudden emergency' but argues that because there was no evidence of any such emergency, the giving of the instruction was erroneous. The Appellant argues in effect that because the driver of the truck saw the two cars at the intersection from about 480 feet away there could have been no 'sudden emergency' present. We cannot agree. An instruction on sudden emergency would be proper if there was any evidence or inference therefrom supporting it. Pennsylvania Ice & Coal Co. v. Elischer, 106 Ind.App. 613, 21 N.E.2d 436 (1939).
As noted above, the driver of the truck testified that he saw the car in which Appellant's ward was riding stopped at the intersection and that the car 'all at once pulled right out in front of me.' There was, therefore, evidence introduced of the existence of a sudden emergency and the instruction was properly given. See Buckner v. Wilson, Ind.App., 227 N.E.2d 462 (1967), and Scott v. Sisco, 129 Ind.App. 364, 156 N.E.2d 895 (1959) where this court stated further that if the instruction was supported by the evidence and went to make Appellee's theory of the case, the court had a duty to give the instruction. Baker v. Mason, Ind., 242 N.E.2d 513 (1968), cited by counsel, is not directly relevant here because our Supreme Court found in that case that the non-conflicting evidence established clearly that there was no sudden emergency. We hold here that there was evidence of a sudden emergency and that there was no error in the giving of the instruction.
In his next specification of error, Appellant alleges that Appellee's tendered instruction number 2 and Appellant's tendered instruction number 5 conflict with each other and that the giving of same constitutes reversible error.
Appellee's tendered instruction number 2 is as follows:
'Ladies and Gentlemen of the Jury: I instruct you that the driver of the defendant's truck, Robert Wagner, at the time and place immediately before the collision described in the plaintiff's complaint, had the right to assume that all operators of other motor vehicles approaching, or stopped at the intersection of U.S. Highway No. 6 and State Road 331, were operating their automobiles in compliance with the laws of the State of Indiana, and in the exercise of reasonable and due care and that Robert Wagner, in the absence of knowledge to the contrary, could not be required to anticipate that the motor vehicle in which the plaintiff was riding as it approached or stopped at said intersection on State Road 331 proceeding in a generally westerly direction, would enter said intersection at a time when said defendant truck was within said intersection or approaching so close as to constitute an immediate hazard, and that said Robert Wagner, the driver of the defendant truck, in the exercise of reasonable and due care was not required to anticipate any such conduct on the part of the driver of the automobile in which the plaintiff was riding, and said defendant cannot be held negligent for the failure to foreguard against such conduct.'
Appellant's tendered instruction number 5 is as follows:
'I instruct you that, at the time of the collision in question, there was a statute of the State of Indiana which, in part applicable to the collision in question, is as follows:
Burns 47--2028
'Entering through highway or intersection.--Obedience to yield signs.--(a) The driver of a vehicle shall stop as required by this act at the entrance to a through highway and shall yield the right-of-way to other vehicles which have entered the intersection from said through highway or which are approaching so closely on said through highway as to constitute an immediate hazard, but said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said through highway shall yield the right-of-way to the vehicle so proceeding into or across the through highway.'
'I instruct you that if you find from the evidence in this case that the driver of the 1955 Chevrolet automobile in question stopped said automobile which he was driving before entering into U.S. Highway #6 and Indiana Road #331 from Indiana Road #331 and at such time the truck operated by Defendant was not in the intersection nor approaching so closely to said intersection as to cause an immediate hazard, then I instruct you that said driver of the Chevrolet automobile had the right-of-way to proceed into and across said intersection and onto U.S. Highway #6 and Indiana Road #331 and that the Defendant, Arco Auto Carrier, Inc., had the duty to yield the right-of-way to such vehicle.
'I further instruct you that if you find from the evidence that the Defendant so failed to yield the right-of-way- and that such failure on the part of said Defendant was a proximate cause of the collision in question, then your verdict may be for the Plaintiff, and against the Defendant, Arco Auto Carriers, Inc.'
Appellant argues that Appellee's tendered instruction number 2 omitted the element of the duty of the driver on the through highway, which...
To continue reading
Request your trial
-
Frankfort v. Owens
...representing appellee-defendant's theory of the case, so long as such theory is supported by the evidence. Kiger v. Arco Auto Carriers, Inc. (1969), 144 Ind.App. 239, 245 N.E.2d 677." (Original Frankfort next argues that the trial court erred in giving to the jury Indiana Bell's Final Instr......
-
Sullivan v. Fairmont Homes, Inc.
...or inference therefrom in the record supporting it. Mullins v. Bunch (1981), Ind., 425 N.E.2d 164, 165; Kiger v. Arco Auto Carriers, Inc. (1969), 144 Ind.App. 239, 245 N.E.2d 677. The court has a duty to give such an instruction if it is supported by the evidence and goes to Fairmont Homes'......
-
Taylor v. Todd
...informs the jury about a party's theory of the case. Baker v. Mason, (1968) 253 Ind. 348, 242 N.E.2d 513; Kiger v. Arco Auto Carriers, Inc. (1969) 144 Ind.App. 239, 245 N.E.2d 677. In the case at bar, Taylor argues only that the sudden emergency instruction was not supported by the evidence......
-
Echterling v. Jack Gray Transport, Inc.
...been observed or seen by appellee-Trudeau prior to the first impact, as a matter of law. In Kiger v. Arco Auto Carriers, Inc., Ind.App., 245 N.E.2d 677, at 679, 17 Ind.Dec. 26, at 28 (1969), Judge Sharp, speaking for this court, 'An instruction on sudden emergency would be proper if there w......