Lankford v. Lucas, 2-1075A266
| Decision Date | 13 September 1977 |
| Docket Number | No. 2-1075A266,2-1075A266 |
| Citation | 367 N.E.2d 13,174 Ind.App. 232 |
| Parties | Richard L. LANKFORD and Ruth H. Lankford, Appellants (Plaintiffs below), v. Rebecca J. LUCAS, Jean Goss, Administratrix of the Estate of Joseph Adams, Walter E. Geisking and Golden Imperial, Inc., Appellee (Defendant below). |
| Court | Indiana Appellate Court |
James R. Fisher, Ice, Miller, Donadio & Ryan, Indianapolis, for appellee.
This case was transferred to this office from the Second District in order to help eliminate the disparity in caseloads among the Districts.
As the result of injuries suffered in an automobile accident, plaintiffs-appellants Richard and Ruth Lankford brought an action for damages against defendant-appellee Rebecca Lucas, also against the estate of Joseph Adams, and against Walter Geisking and Golden Imperial, Inc., his employer. The actions against Adams' estate, Geisking, and Golden Imperial were settled before trial, and a covenant not to sue those parties was signed by the Lankfords.
Since Lucas would not settle, a trial was held, and, based upon a jury verdict denying recovery, judgment was rendered in favor of Lucas. From that judgment and a subsequent denial of their motion to correct errors the Lankfords appeal.
The statement of facts most favorable to the judgment is as follows:
On February 26, 1971 at approximately 7:50 p. m. Lucas was driving her car in the northbound lane of Indiana State Highway 37 approximately ten miles north of Bloomington. Lucas was driving down a hill upon which the road curved gradually to the west. On that hill there were three lanes of traffic, one northbound and [174 Ind.App. 234] two southbound. It was dark, and the road was dampened by light precipitation, but there was no ice or snow on the road.
Lucas was driving down the hill at approximately 45 mph when suddenly there appeared a southbound car in her northbound lane. She slammed on her brakes and turned her wheels sharply to the right. When her right front wheel hit the berm it gripped the dirt and caused her car to spin around so that she was off the road but facing South.
Behind Lucas' car was a tractor and semitrailer driven by Walter Geisking. Geisking had followed Lucas at a distance of four or five car lengths for a few miles. Geisking testified that he took his foot off the accelerator and began to slow down when he saw Lucas' car spin in front of him. He then saw a southbound car coming toward him in his northbound lane. Geisking's first inclination was to turn to the right to avoid a collision with the oncoming car, but he did not because he feared that the fumes in his empty gasoline tank truck would have exploded if he had collided with the rock wall which bordered the eastern berm of the roadway.
Geisking slammed on his brakes and his vehicle began to jack-knife; the front of the semitrailer and the back of the tractor began to project eastward, and the front of the tractor moved westward close to and perhaps across the double yellow line which divided the northbound and the southbound lanes.
In its attempt to avoid a collision with Geisking's vehicle the southbound car, which had been driving in the northbound lane, cut back toward the southbound lanes. But in so doing it hit the right front corner of the tractor portion of Geisking's jack-knifing tractor and semitrailer, thereby shearing off the entire left side of that car and killing its driver, who was later identified as Joseph Adams.
After colliding with Adams' car Geisking's vehicle went into a full jack-knife, skidding sideways and obstructing all three lanes of traffic. As the trailer portion of Geisking's vehicle skidded up the east side of the northbound lane, it struck the right front [174 Ind.App. 235] portion of Lucas' car, which because of her spinning stop was then sitting on the berm facing southward, and knocked it with sufficient force to spin it around again so that it came to rest in a northward position.
Kenneth Peterson, who was driving a southbound tractor which did not have its semitrailer attached, was able to avoid collision with Geisking's obstructing vehicle by maneuvering his tractor to the west berm and passing between the cab of Geisking's tractor and a rock wall which bordered the berm.
Richard and Ruth Lankford were not as fortunate as Peterson; they could neither maneuver nor stop. Their Volkswagen bus rammed the tractor portion of Geisking's vehicle, and, as a result, both were injured. At almost the same time a car driven by Bill Gilbert rammed the trailer portion of Geisking's vehicle, Gilbert was not seriously injured.
The issue presented to this court for review is whether the trial court erred in refusing to give to the jury certain of plaintiffs' tendered jury instructions.
Plaintiffs' tendered Instruction # 2, which contained verbatim extracts taken from IC 1971, 9-4-1-57 (Burns Code Ed.), Indiana's highway speed statute, and plaintiffs' tendered Instruction # 4, which contained verbatim extracts taken from IC 1971, 9-4-1-78 (Burns Code Ed.), Indiana's automobile turning statute, were not supported by the evidence and were, therefore, properly refused. 1 Lucas was driving 40 to 45 mph in a 65 mph zone. The road was damp but no ice or snow was present. Also it is inconceivable that a jury would find Lucas negligent for not signaling before making an emergency turn into the ditch. No evidence was submitted at trial from which the jury could have reasonably inferred that Lucas' speed was excessive or that she made an improper or unsafe turn.
Plaintiffs' tendered Instruction # 7 reads as follows:
Plaintiff's tendered Instruction # 7 is a correct statement of the law. 2 But it was properly refused 3 because the substance of this instruction was covered by the court in its instructions which were given to the jury as follows:
The instructions, supra, presented by the court pointed out that if the Lankfords' injuries were proximately caused by a third party (Adams and Geisking), and Lucas' negligence caused or contributed to the collision and subsequent injuries, then the Lankfords would be entitled to recover from Lucas. The court also admonished the jury that settlement payments from Adams' estate and from Golden Imperial, Geisking's employer, did not require the jury to conclude that those parties were negligent, nor the sole cause of the collision.
These instructions, supra, coupled with the instructions which the court gave to the jury on negligence, duty of care, and proximate cause, conveyed to the jury the concept that if they found Lucas negligent, and they found that her...
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