Kurowsky v. Deutsch

• Decision Date: 09 February 1989
• Docket Number: No. 34S00-8902-CV-125,34S00-8902-CV-125
• Parties: Todd KUROWSKY, Appellant (Defendant), v. Sherry DEUTSCH, Appellee (Plaintiff).
• Court: Indiana Supreme Court

Page 1210

533 N.E.2d 1210

Todd KUROWSKY, Appellant (Defendant), v. Sherry DEUTSCH, Appellee (Plaintiff).

No. 34S00-8902-CV-125.

Supreme Court of Indiana.

Feb. 9, 1989.

Alan D. Wilson, Thomas J. Trauring, Fell, McGarvey & Trauring, Kokomo, for appellant.

Daniel J. Harrigan, Bayliff Harrigan Cord & Maugans, P.C., Kokomo, for appellee.

DeBRULER, Justice.

This is an appeal from a judgment for the plaintiff in a negligence case involving the collision of two bicycles in the street. The case was tried before a jury. The allegations of negligence on the part of the defendant in the jury instructions were (1) failing to yield the right of way to plaintiff as required by I.C. 9-4-1-84 and (2) failing to keep a lookout for traffic on the street before bicycling from the driveway onto the street. The allegations of contributory negligence on the part of the plaintiff were (1) the failure to keep a proper lookout and (2) operating on the wrong side of the street in violation of I.C. 9-4-1-65.

The Second District of the Court of Appeals reversed the judgment and ordered a new trial because two erroneous instructions were given to the jury. Kurowsky v. Deutsch (1988), Ind.App., 518 N.E.2d 1111. The petition of appellee Deutsch for transfer is granted.

The evidence at trial upon which the jury was warranted in rendering its verdict for the plaintiff shows the following. The plaintiff was a 35 year old executive riding a high-tech bicycle in high-tech clothing, listening to music on a cassette player. She entered Stratford Drive properly travelling east in the middle of the right lane of travel, and noticed two children in a go-cart ahead of her going in the same easterly direction. Stratford Drive was located in a residential subdivision in which there were no sidewalks. She proceeded a short distance up the street, approaching the go-cart, when the nine-year-old defendant rode his bicycle out of a driveway from the right in a northerly direction in pursuit of his playmates in the go-cart and into the path of plaintiff, colliding with plaintiff. It was daylight and dry and views were not obstructed. Plaintiff was knocked unconscious and suffered several broken bones, with resulting permanent impairments.

Appellant first contends that the trial court committed error in giving plaintiff's Instruction No. 9. Such instruction reads:

A series of statutes of the State of Indiana, in full force and effect at the time of the accident in controversy, provided as follows:

9-4-1-14. Highways.--(a) Street or Highway. The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.

(b) Private Road or Driveway. Every way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner but not by other persons.

9-4-1-21. Right-of-Way.--Right-of-Way. The privilege of the immediate use of the highway.

9-4-1-94. Traffic laws apply to persons riding bicycles.--Every person riding a bicycle upon a roadway shall have all of the rights and all of the duties under the provisions of this chapter applicable as to those regulations of this article, and except as to those provisions of this chapter which by their nature can have no application.

9-4-1-84. Entering highway from private road or driveway.--The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right-of-way to all vehicles approaching on said highway.

If you find from a fair preponderance of the evidence in this case that at the time of the accident in controversy the Defendant, Todd Kurowsky, failed to obey the provisions of these statutes, without excuse or justification then such conduct upon the part of Todd Kurowsky could constitute negligence, unless you also find that in spite of the violation, he exercised that degree of care which would ordinarily be exercised by a child of the same age, experience, intelligence and educational level.

Pursuant to Rule 51(C) of the Rules of Trial Procedure, defense counsel objected to this instruction on the basis that first it places a nonexistent statutory duty to yield on a bicyclist exiting a private property onto a public street, and second because it incorrectly allowed the jury to conclude that the infant defendant was negligent if he violated the statute.

In deciding this issue, we first determine whether the instruction constitutes an erroneous statement of the law as contended in the objection made below. If it is so erroneous, a reversal is warranted unless the court on appeal concludes that the error was harmless, in the sense that it did not impinge upon the substantial rights of the party. Chaffee v. Clark Equipment Co. (1986), Ind., 496 N.E.2d 84. Board of County Commissioners of County of St. Joseph v. Arick (1985), Ind.App., 477 N.E.2d 112.

I.C. 9-4-1-84 places a duty upon the operator of a vehicle to yield the right of way when about to enter or cross a highway from a private driveway. I.C. 9-4-1-94 imposes vehicular traffic regulations upon persons riding bicycles "upon a roadway". Since a roadway is otherwise defined as a publicly maintained way used for vehicular travel, I.C. 9-4-1-14(c), appellant contends that bicyclists upon a private driveway are exempt from the duty in I.C. 9-4-1-84 to yield the right of way, and that plaintiff's Instruction No. 9 was erroneous in assigning that duty to him. This question was left undecided in Thornton v. Pender (1978), 268 Ind. 540, 377 N.E.2d 613. A traffic regulation should receive a reasonable construction consistent with its purpose. Conder v. Griffith (1916), 61 Ind.App. 218, 111 N.E. 816. The interest of persons riding bicycles upon public and private ways at their points of convergence are not distinct from such interests of those operating vehicles. These are common intersections requiring regulation. The duty to yield right of way is a just rule satisfying this need. Conduct violating the duty to yield would include the continuous motion and operation of a vehicle through the imaginary plane at the boundary of the highway and the private driveway. We therefore hold, in agreement with the trial court and the Court of Appeals, that there is a statutory duty upon bicyclists to yield when about to enter or cross a highway from a private driveway, and the instruction was a correct statement of law in this regard.

Appellant next contends that plaintiff's Instruction No. 9 was erroneous wherein it stated that a failure of the defendant to obey the statutory provision requiring the right of way to be yielded, without excuse or justification, "could constitute negligence, unless you also find that in spite of the violation, he exercised that degree of care which would ordinarily be exercised by a child of the same age, experience, intelligence and educational level." Appellant argues that he is a child and, under this Court's holding in Bixenman v. Hall (1968), 251 Ind. 527, 242 N.E.2d 837, is entitled to have his conduct, alleged to be in violation of a traffic regulation, judged on the basis of a child's standard of care and free of any presumption of negligence.

An analysis of this instruction commences with the law of negligence applicable to the conduct of adults which violates a statute or ordinance enacted for the purpose of safety announced in Northern Indiana Transit v. Burk (1950), 228 Ind. 162, 89 N.E.2d 905. This Court considered a traffic regulation requiring vehicles to be stopped or parked within twelve inches of the curb. The Court first considered the nature of the conduct regulated, placing it in a broad and historical perspective, and concluded that a violation of the regulation was of such a nature that it constituted only prima facie evidence of negligence which could be rebutted by evidence showing excuse for the violation. The Court next examined the evidence at trial and concluded that since the defendant did not present evidence showing an excuse for noncompliance with the statutory direction, an instruction to the jury that the violation of the statute was negligence as a matter of law, which is to say negligence per se, was not error. If such evidence had been present, the instruction would have been error, and the case should then have gone to the jury on the instruction that the violation was prima facie negligence and could be excused if the defendant came forward with evidence that showed an excuse or justification. The nature of an excuse or justification was stated in Larkins v. Kohlmeyer (1951), 229 Ind. 391, 98 N.E.2d 896, 900:

The rule was well stated in Bush v. Harvey Transfer Co., 1946, 146 Ohio St. 657, 67 N.E.2d 851, 855, as follows: "A legal excuse, precluding liability for injuries resulting from the failure to comply with the statutory requirements respecting the operation of a motor vehicle on the public highways, must be something that would make it impossible to comply with the statute, something over which the driver has no control, an emergency not of the driver's making causing failure to obey the statute, or an excuse or exception specifically provided in the statute itself.

The procedure approved by the Burk case, would require a court in deciding how to instruct a jury, to first consider whether the statute is such that a violation of it would be negligence in any context. If it is, the court must next consider whether the evidence is such that it warrants submission of the case on a negligence per se instruction or a prima facie evidence of negligence instruction. Larkins v. Kohlmeyer, supra. In the event the latter option is used, the jury should also be instructed that the burden is upon the defendant to present evidence and prove that the violation should be excused because of an excuse or justification. The Court in Larkins v. Kohlmeyer, id., went on to provide an example:

In such cases we...