Larkins v. Kohlmeyer

• Decision Date: 23 May 1951
• Docket Number: No. 28787,28787
• Citation: 98 N.E.2d 896,229 Ind. 391
• Parties: LARKINS v. KOHLMEYER.
• Court: Indiana Supreme Court

Page 896

98 N.E.2d 896

229 Ind. 391

LARKINS v. KOHLMEYER.

No. 28787.

Supreme Court of Indiana.

May 23, 1951.

Ortmeyer, Bamberger, Ortmeyer & Foreman, Evansville, for appelant.

T. Morton McDonald, Douglas H. McDonald, Princeton, (John H. Jennings, Evansville, of counsel), for appellee.

DRAPER, Judge.

Action by appellee against appellant to recover damages for personal injuries sustained in an automobile accident. Verdict for $3000, motion for new trial overruled, and error assigned in the overruling thereof.

The evidence is sharply conflicting. That most favorable to the appellee discloses that he was standing on the northwest corner of the intersection of Main Street and Broadway in the business district of Princeton, Indiana, in the daytime. When the light turned green for traffic going north and south, he started to walk south across Broadway on the west side of Main Street. The appellant, who was driving an automobile south on Main, also entered the intersection from the north on the green light. He was proceeding at the rate of 25 miles per hour and made a right hand turn. At a point in the cross-walk area some 8 or 10 feet south of the north curb the appellee was struck by the front bumper. He was knocked about 20 feet. The appellant did not sound his horn at any time. He testified he did not see the appellee before he struck him, and the appellee testified he did not see the automobile before he was struck.

It is asserted that the appellee was guilty of contributory negligence as a matter of law. The question of contributory negligence is ordinarily one for the jury. It is always so where the facts are in dispute, or reasonable men could fairly draw different inferences from undisputed facts. Gamble v. Lewis, 1949, 227 Ind. 455, 85 N.E.2d 629, and authorities therein cited. The appellant says the appellee was negligent in stepping from the curb into the path of the automobile without looking in the direction from which it was approaching, although it was in plain view. Knowing, as we do, that the appellee was progressing at an ordinary gait on foot, and assuming, as we must, that the automobile was travelling 25 miles per hour, it is apparent that the appellee could not have suddenly stepped into the path of the automobile. Even if the appellee had looked and seen the automobile coming up behind him when he stepped from the curb, he could not know that he was entering that part of the street which the driver of the automobile intended to occupy, for he had no way of knowing the automobile would trun right into Broadway.

It was the appellant's duty to anticipate that a pedestrian might be attempting to walk south across the street on the green light, and it was his duty to see and know whether there was a pedestrian in his path in broad daylight. Fields v. Hahn, 1945, 115 Ind.App. 365, 57 N.E.2d 955. The appellee had the right to assume that a driver would be keeping a lookout sufficient for that purpose. In the absence of knowledge to the contrary, he was not required to anticipate that the appellant would drive into the intersection at an unlawful speed, and would make a right hand turn without any warning of his intention so to do, and that he would fail to yield the right of way to a pedestrian lawfully within the intersection, all as required by statute. Rentschler v. Hall, 1947, 117 Ind.App. 255, 69 N.E.2d 619.

Assuming, however, that the appellee was negligent in failing to keep a sufficient lookout for vehicular traffic, it was still for the jury to say whether such negligence was a contributing cause of his injuries, or, in other words, whether his negligence was contributory negligence. King v. Ransburg, 1942, 111 Ind.App. 523, 39 N.E.2d 822, 40 N.E.2d 999. If, while crossing the street, the appellee had looked to his left and had seen the car rounding the corner at 25 miles per hour, it is problematical whether he could have dodged it, and it is apparent he could have avoided injury in no other way, for the appellant never saw him at any time. We think the question of contributory negligence was clearly one for the jury in this case.

Burns' 1940 Repl. § 47-2023(a) provides that: 'No person shall * * * turn a vehicle from a direct course upon a highway, unless and until such movement can be made with reasonable safety, and then only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement * * *.'

Burns' 1949 Supp. § 47-1905 provides that: 'Whenever traffic is controlled by traffic control signals * * * exhibiting different colored lights successively, the following colors only shall be used and said * * * lights shall indicate and apply to drivers of vehicles and pedestrians as follows:

'(a) Green alone or green accompanied by the word 'Go':

'1. Vehicular traffic facing the signal * * * may proceed straight through or turn right * * *. But vehicular traffic shall yield right-of-way * * * to pedestrians lawfully within a crosswalk at the intersection at the time such signal is exhibited.

'2. Pedestrians facing the signal may proceed across the roadway within any marked or unmarked crosswalk.'

In separate instructions the jury was told that the violation of these statutes constituted negligence as a matter of law. The instructions were similarly worded, and since the law has equal application to each, we whall quote and discuss but one of them.

Instruction No. 1 reads as follows:

'You are instructed that at all times complained of in plaintiff's complaint there was a statute of the State of Indiana in full force and effect and being upon the parties which provided in part as follows: 'No person shall * * * turn a vehicle from a direct course on a highway unless and until such movement can be made with reasonable safety, and then only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement.'

'So in this case if you find from a fair preponderance of the evidence that the defendant violated the provisions of this statute, he was guilty of negligence as a matter of law and if you further find from a fair preponderance of the evidence that the defendant's violation of this statute, if any, proximately caused the plaintiff's injury and resulting damages, if any, without fault or negligence on the part of the plaintiff, then under such circumstances, if any, your verdict must be for the plaintiff Fred Kohlmeyer.'

The appellant objected to the instruction for several reasons, the one now urged being that the violation of the statutes above quoted would amount only to prima facie evidence of negligence, which is subject to rebuttal; that the statutes do not create or impose a positive duty, and consequently the violation of them does not and cannot constitute negligence as a matter of law. He takes the position that neither of the statutes above referred to create an absolute and conclusive duty, the technical violation of which would not be subject to excuse, and says that under the record in this cause there was ample evidence which would excuse such a violation and, therefore, the violation of those statutory regulations could in this case amount only to prima facie evidence of negligence.

Generally speaking, the violation of a statute prohibiting a particular act or requiring a particular precaution is negligence as a matter of law. It has long been the rule in this state that 'Where a standard of duty is fixed, and its measure defined by law, the omission of that duty is negligence per se', Prest-O-Lite Co. v. Skeel, 1914, 182 Ind. 593, 600, 106 N.E. 365, 368, when the duty was owed to the person injured through the violation thereof.

It is recognized, however, that prudence sometimes requires the doing of an act which would otherwise be a violation of the 'law of the road', and liability therefor may sometimes be avoided by showing that under the circumstances of the particular case the violation was justifiable or excusable. This is on the theory that statutes of the kind under consideration are to be reasonably construed, and that a statutory duty may be modified by the peculiar circumstances of a particular case. 65 C.J.S., Negligence, § 19h, p. 426. The Appellate Court stated the rule in Conder v. Griffith, 1916, 61 Ind.App. 218, 111 N.E. 816, 819, in the following language: '(T)he general rule is that the violation of a statute or ordinance which is the proximate cause of an injury is negligence per se. * * * While the general rule is as above stated, and the violation of such statute or ordinance is prima facie negligence per se, nevertheless there may be facts and circumstances which will excuse a technical violation of an ordinance or statute and...