McClure v. Miller

• Decision Date: 01 May 1951
• Docket Number: No. 28791,28791
• Citation: 98 N.E.2d 498,229 Ind. 422
• Parties: McCLURE v. MILLER.
• Court: Indiana Supreme Court

Page 498

98 N.E.2d 498

229 Ind. 422

McCLURE v. MILLER.

No. 28791.

Supreme Court of Indiana.

May 1, 1951.

Symmes, Fleming & Symmes, Frank A. Symmes, Frank A. Symmes, Jr. and Charles W. Symmes, all of Indianapolis, for appellant.

Armstrong & Gause, Paul B. Hudson, Erle A. Kightlinger, Indianapolis, for appellee.

GILKISON, Judge.

Appellee brought this action in two paragraphs to recover damages for alleged personal injuries and property damage resulting from a collision between a car owned and operated by appellant and a car owned and operated by appellee on April 30, 1947.

The complaint was put at issue by answers, tried by jury resulting in a verdict for $750 for personal injuries and $500 for property damage. From a judgment on these verdicts the appeal is taken.

Each paragraph of the complaint alleges in substance that at approximately four o'clock P. M. on April 30, 1947 plaintiff was operating his 1938 Ford sedan eastwardly in the 400 block of East Forty-third Street in the City of Indianapolis, and defendant was operating a 1936 Ford coach in the same direction on that street to the rear of plaintiff's car. That then and there the defendant drove his car into and against the rear of plaintiff's car causing plaintiff to lose control thereof and causing it to run into a wooden utility pole standing north of the north curb line of the street, damaging the car as set forth.

That in so driving his car defendant was guilty of negligence as follows: He failed to keep a proper lookout for vehicles including plaintiff's car, and failed to heed the presence of that car in time to avoid the collision, although it was daylight and the view was unobstructed. That the defendant operated his car at a high and dangerous speed, to wit: 35 miles per hour, in consideration of the traffic and parked automobiles at that point. That defendant negligently failed to apply the brakes and stop his car in time to avoid the collision when he saw, or by the use of reasonable care could have seen plaintiff's automobile. That the negligent acts of the defendant, as set out, were separately and severally the proximate cause of the collision.

Paragraph one also avers injuries to the person from the collision particularly describing such injuries, great pain, inability to wrok for two days, and intermittent pain ever since, permanent impairment, the expenditure of $5 for ambulance service and $8 for emergency medical attention. Prayer for judgment for $3,500, costs and proper relief.

The second paragraph further avers damage to plaintiff's car from the collision, particularly describing it, avers that plaintiff was free from contributory negligence and asks judgment for $500 damages, costs and proper relief.

Appellant's motion for new trial which was overruled, gives as reasons therefor that each verdict is contrary to law, and each is not sustained by sufficient evidence. That the damages assessed are excessive. That the court erred in refusing to give each of defendant's tendered Instructions Nos. 4, 8 and 9. That the court erred in giving each of plaintiff's tendered Instructions numbered 1, 2, 4, 9, 12, 14 and 15. That the court erred in giving its own Instruction No. 13. In his brief appellant discusses only alleged errors to plaintiff's Instructions 1, 2, 4 and 12 and the court's Instruction 13, thereby waiving any claimed errors in other instructions given or refused. Rule 2-17(f) Supreme Court. That the court erred in overruling appellant's objections to certain questions, and his motion to strike out certain evidence. That the court erred in admitting in evidence plaintiff's exhibits 1 and 2.

Appellant's claim that each verdict is contrary to law is based wholly upon the further reasons that the court erred in giving certain instructions, and that the court erred in admitting certain evidence. A determination of these two propositions necessarily will determine each claim that the verdicts are contrary to law.

The court's Instruction No. 13 is as follows: 'If you find for the plaintiff in this case, then it becomes your duty to fix the amount of damages, if any, to which he is entitled. I instruct you that in establishing his damages, if any, you should take into consideration the nature and extent of his injuries, if any, received as a result of the negligence, if any, of the defendant, whether they are permanent or not, any loss of income, if any, any physical or mental suffering, if any, to which he may have been subjected or will be subjected by reason of said injuries, if any, together with expenses, if any, to which he may have been subjected as a result of such injuries, if any, all as shown by the evidence in the case relating thereto and as alleged in the complaint, and give him such an amount in damages as will under all the evidence in the case upon that subject compensate him for his injuries, if any, and damages suffered, if any, not exceeding the amount named in the complaint.'

The following objections were made to this instruction: That 'it assumes liability on part of defendant and says to assess damages recovered as a result of negligence of the defendant without mentioning contributory negligence nor in any way say that if you find for plaintiff under instructions previously given;' that damages might be assessed for permanent injury, which is a subject of expert medical testimony, and there was none in this case; the instruction is outside of the evidence; there was no loss of income proved and consequently instruction goes beyond evidence; that the instruction allows damages to be assessed for physical or mental suffering to which he will be subjected which is clearly a matter for expert medical opinion of which there was no evidence; that the instruction does no confine damages to evidence relating solely thereto, but allows and tells jury to consider all evidence in the case.

In his complaint plaintiff avers that the injuries he received will permanently impair him. There is evidence that plaintiff was knocked unconscious, that he suffered contusions and lacerations of the right side of his head, face, shoulder and right leg. Stitches had to be taken in his chin and leg. There is evidence that plaintiff's hearing is affected, he has headaches, ears ring all the time and his right shoulder hurts when he raises the right arm. His injured leg was exhibited to the jury, and of course his scarred face must have been apparent. All these facts presented a situation of such objectivity as to enable the jury to determine the preponderance of the evidence with respect to the permanence of the injuries received without evidence from experts concerning the matter. Cluster v. Upton, 1933, 165 Md. 566, 569, 168 A. 882. See also Walker Hospital v. Pulley, 1920, 74 Ind.App. 659, 663, 127 N.E. 559, 128 N.E. 933.

This instruction also advised the jury that it might include in the damages assessed 'any loss of income, if any.' Appellant contends that this was error because there is no evidence of any loss of income. The instruction by its wording avoids the objection by using the words 'if any'. If no loss of income was proved under this instruction, the jury could not include such damages in its verdict. As worded the jury must have understood that it might include loss of income, only if there was some proof of such loss. See If, 31 C.J. p. 238, 42 C.J.S., If, p. 377.

The verdict is so modest we are persuaded that the jury did not include either 'permanent injuries' or 'loss of income' in its finding.

We find no error in giving the court's Instruction No. 13.

Plaintiff's requested Instruction No. 1 given, is as follows:

'I instruct you that at the time of the accident in question, there was in full force and effect a statute in the State of Indiana, which, among other things, provided:

'47-2004. Speed Regulations.--(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so restricted as may be necessary to avoid colliding with any person or vehicle or other conveyance on or near or entering the highway in compliance with legal requirements and with the duty of all persons to use due care.

'(c) Prima facie speed limits. Where no special hazards exist the following speed shall be lawful, but any speed in excess of said limits shall be prima facie evidence that the speed is not reasonable or prudent, and that it is unlawful.

'1. Twenty (20) miles per hour in any business district.

'2. Thirty (30) miles per hour in any resident district.

'I instruct you that if you find from a preponderance of the evidence that the defendant violated this statute, then the defendant was guilty of negligence per se; and if you further find from a preponderance of the evidence that such violation proximately caused plaintiff's injuries and damages as described in the complaint, and that the plaintiff was free from contributory negligence himself, then your verdict should be for the plaintiff.'

The objection to this instruction is as follows: 'Defendant objects to said instruction for the reason that there is no evidence of speed in respect to defendant's vehicle and therefore goes beyond the evidence. It is further erroneous in that it quotes prima facie reasonable speeds which is not applicable if any conflict of evidence in respect to speed. It is further erroneous in that it is a preemptory instruction directing a verdict for plaintiff without embodying all essential elements necessary to sustain a verdict. Further, uses the words 'violated' and 'guilty' which carries a criminal connotation and injects criminal question into a civil matter.'

This instruction presents to the jury applicable parts of the Indiana Speed Statute, Sec. 47-2004, and tells the jury, if it found by a preponderance of the evidence that appellant at the time violated this...