Kraning v. Bloxson

• Decision Date: 16 June 1937
• Docket Number: No. 15270.,15270.
• Citation: 103 Ind.App. 660,9 N.E.2d 107
• Parties: KRANING v. BLOXSON.
• Court: Indiana Appellate Court

103 Ind.App. 660

9 N.E.2d 107

KRANING

v.BLOXSON.

No. 15270.

Appellate Court of Indiana, in Banc.

June 16, 1937.

Appeal from Fulton Circuit Court; Robert R. Miller, Judge.

On petition for rehearing.

Rehearing denied.

For prior opinion, see 5 N.E.(2d) 649.Arthur Metzler, of Rochester, and Russel J. Wildeman, of Peru, for appellant.

Hugh Laurence and Charles C. Campbell, of Rochester, for appellee.

WOOD, Chief Judge.

The appellant has filed a petition for a rehearing of this cause in which he renews his contention with much force and ingenuity, that the trial court committed reversible error in giving to the jury instructions Nos. 8, 9, 14, 15, 17, and 19 tendered by the appellee, and in refusing to give to the jury instruction No. 1, tendered by the appellant.

We have again carefully examined the record. It shows that the appellant tendered twenty-eight instructions of which all but Nos. 1 and 2 were given to the jury; that the appellee tendered twenty-two instructions of which all but Nos. 1 and 2 were given to the jury, and the court of its own motion gave eight instructions to the jury.

[1][2] Appellee's instruction No. 8, of which appellant complains, and which we did not discuss in detail in the original opinion, informed the jury that if, because of the negligence of the appellant, appellee's decedent was suddenly and unexpectedly placed in a position of great danger, this would be a proper circumstance for it to consider in respect to the decedent's conduct, that the law does not expect the same coolness and circumspection from a person under such circumstances as in those instances where he has time and opportunity to think and deliberate as to the best means to avoid the impending accident, and that if the jury found that the decedent was thus placed in such apparent danger, by the negligence of the appellant, and acted as an ordinarily prudent person would do in the same situation, then it would not be warranted in finding the decedent guilty of negligence, though he would not have received the injuries if he had not so acted. The appellant insists that this instruction directs the jury to find against him on the question of contributory negligence, even though the decedent was guilty of negligence in placing himself in a position of peril in the first instance, that the reason for the rule does not apply under such a state of facts, and that the instruction is mandatory. While the language in which this instruction is couched is inept, it is not subject to the criticism directed against it by appellant. Whether or not the decedent was guilty of negligence in placing himself in the perilous position in the first instance (if he in fact did so) and whether or not after finding himself in a perilous position (if he in fact was in such position) he acted as a reasonable and prudent person would do under similar circumstances were facts to be submitted to the jury for its determination. The instruction was not mandatory, nor do we think it invaded the province of the jury, and when considered together with the other instructions given to the jury, the giving of this instruction was not reversible error. McIntyre v. Orner (1906) 166 Ind. 57, 76 N.E. 750, 4 L.R.A. (N.S.) 1130, 117 Am.St.Rep. 359, 8 Ann. Cas. 1087;Cleveland, etc., R. Co. v. Miles (1904) 162 Ind. 646, 70 N.E. 985;Stoy v. Louisville, etc., R. Co. (1903) 160 Ind. 144, 66 N.E. 615. But appellant cannot consistently complain of appellee's instruction No. 8, for on request of appellant, the court gave to the...