Lewis by Lewis v. Bonahoom

• Decision Date: 24 December 1991
• Docket Number: No. 02A03-9101-CV-21,02A03-9101-CV-21
• Citation: 583 N.E.2d 175
• Parties: Michael J. LEWIS, A Minor by his natural guardians and parents, James G. LEWIS and Helen Lewis, Plaintiffs-Appellants, v. Rachele M. BONAHOOM, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 175

583 N.E.2d 175

Michael J. LEWIS, A Minor by his natural guardians and parents, James G. LEWIS and Helen Lewis Plaintiffs-Appellants, v. Rachele M. BONAHOOM, Defendant-Appellee.

No. 02A03-9101-CV-21.

Court of Appeals of Indiana Third District.

Dec. 24, 1991.

Thomas C. Doehrman, N. Kathleen Wenzel, Conour-Doehrman, Indianapolis, for plaintiffs-appellants.

Mark A. Garvin, D. Randall Brown, Barnes & Thornburg, Fort Wayne, for defendant-appellee.

GARRARD, Judge.

I. Facts and Procedural History

This is an appeal from a defendant's verdict in a personal injury case. We affirm.

On May 17, 1986 Michael J. Lewis, a minor, was riding a bicycle eastbound on Lower Huntington Road in Fort Wayne, Indiana with two other boys. At the same time Rachele M. Bonahoom was driving a 1972 Oldsmobile Ninety-Eight eastbound on Lower Huntington Road and was approaching Lewis and his friends from behind. They saw Bonahoom approaching. Lewis moved his bicycle over to the left side of the road and his friends stayed on the right side. As Lewis maneuvered his bicycle to the left side of the road, the front right side of Bonahoom's car and the back end of Lewis' bike collided. As a result, Lewis was injured.

Lewis, by his parents and natural guardians, James G. and Helen Lewis, filed suit against Bonahoom on November 18, 1988. Lewis claimed Bonahoom was negligent for travelling at an unsafe speed for the conditions present, failing to keep her vehicle under control, and failing to sound her horn.

On November 27-29, 1990 trial was held to a jury. At the trial Lewis tendered an instruction based upon IC 9-4-1-89 which, paraphrased, provides that a driver of a vehicle shall give an audible signal when necessary and shall exercise proper precautions to avoid a collision with a pedestrian or bicyclist. Bonahoom objected to Lewis' tendered instruction on the grounds that the trial testimony did not provide any evidence regarding whether Bonahoom did or did not sound her horn. The trial court modified Lewis' tendered instruction by deleting the reference to the statutory requirement to give an audible signal when necessary and gave the final instruction as the court's number thirteen. Lewis timely objected to the court's final instruction number thirteen. He contended there was, in fact, evidence in the record to support the giving of his tendered instruction.

After deliberations, the jury returned a verdict in favor of Bonahoom and against Lewis, and the court entered judgment on the verdict. The jury verdict indicated that Bonahoom was at fault, but that Lewis was more than fifty percent at fault. Lewis contends the failure to advise the jury of the statutory duty to sound the signal when necessary was reversible error because with that additional element the jury might have determined that Bonahoom's percentage of fault was more than fifty percent.

Lewis filed a motion to correct errors asserting this issue on December 20, 1990, and the trial court denied the motion on the same date. As a result, Lewis appeals.

II. Issue

The issue present on appeal is: Whether is was reversible error for the trial court to refuse Lewis' tendered instruction number nine regarding the sounding of a signal when necessary when no testimony or evidence at trial was elicited concerning such a signal.

III. Discussion and Decision

In reviewing a trial court's refusal to give a tendered instruction we must determine: (1) whether the tendered instruction is a correct statement of the law; (2) whether there is evidence in the record to support the instruction; and (3) whether the substance of the instruction is covered by other instructions given by the court. Compton v. Pletch (1990), Ind.App., 561 N.E.2d 803, 805, modified on other grounds, 565 N.E.2d 771; Sullivan v. Fairmont Homes, Inc. (1989), Ind.App., 543 N.E.2d 1130, 140, trans. denied. Therefore, for refusal of a tendered instruction to constitute error, there must be some evidence in the record to support the theory set out in the instruction. Fankboner v. Schubert (1982), Ind.App., 431 N.E.2d 856, 861, trans. denied, citing Malavolti v. Meridian Trucking Co. (1979), 69 Ill.App.3d 336, 25 Ill.Dec. 770, 387 N.E.2d 426. Because we find no evidence in the record to support the refused instruction, we affirm the trial court's refusal to give the instruction and do not address the other requirements.

Lewis' tendered instruction number nine provided:

At the time of the occurrence being considered, there was a statute in effect in the State of Indiana that provided as follows:

9-4-1-89. Notwithstanding other provisions of this chapter or the provisions of any local ordinance, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian or any person propelling a human powered vehicle and shall give an audible signal when necessary and shall exercise proper precautions upon observing any child or any obviously confused, incapacitated or intoxicated person.

If you find from a preponderance of the evidence that the Defendant was in violation of this statute on the occasion in question, then you may consider that violation in your assessment of fault against the Defendant.

R. p. 28 (emphasis added).

The trial court modified Lewis' instruction as tendered and gave it as the court's final instruction number thirteen. The court's modified instruction contained language identical to Lewis' tendered instruction, except that the language underlined above regarding the giving of a signal when necessary was omitted. (R. p. 45). The trial court found no evidence in the record to support the giving of the "and shall give an audible signal when necessary" portion of IC 9-4-1-89. We agree.

A review of the record discloses that there was no...