Meeker v. Robinson

Decision Date12 December 1977
Docket NumberNo. 1-1176A221,1-1176A221
PartiesEverett MEEKER, Appellant (Plaintiff below), v. Thelma ROBINSON, Appellee (Defendant below).
CourtIndiana Appellate Court

Dennis H. Stark, John A. Kesler, William K. Teeguarden, Terre Haute, for appellant.

Charles F. Robinson, Jr., Linda Y. Hammel, Yarling, Tunnell, Robinson & Lamb, Indianapolis, for appellee.

LYBROOK, Judge.

Plaintiff-appellant Everett Meeker appeals from a negative judgment entered in his suit against defendant-appellee Thelma Robinson, arising out of a motorcycle-automobile collision. Meeker raises the following issues for review:

(1) Did the trial court err in admitting and later refusing to strike certain evidence regarding a posted speed limit sign?

(2) Did the trial court err in prohibiting references to a posted speed limit during final argument?

(3) Did the trial court err in refusing to admit certain medical records offered into evidence by Meeker?

(4) Did the trial court err in giving Robinson's Instruction No. 5?

We affirm.

On August 13, 1973, Everett Meeker (Meeker) was traveling eastward in the 2100 block of Clay Avenue in Terre Haute between 6:00 and 6:30 p.m. when the motorcycle which he was riding and the automobile which Thelma Robinson (Robinson) was driving were involved in a collision. The parties disagree as to whether Robinson's automobile struck Meeker's motorcycle as Robinson attempted to turn into her driveway, or whether Meeker's motorcycle struck Robinson's automobile as Robinson waited to turn into her driveway.

Meeker filed suit against Robinson March 10, 1975, alleging that Robinson had negligently caused the collision and that Meeker had suffered personal injuries, property damage, and lost wages as a result of the collision. Robinson denied liability and pleaded the affirmative defense of contributory negligence.

Trial commenced June 29, 1976. Following a jury verdict for Robinson, the trial court entered judgment on the verdict. Meeker filed his motion to correct errors August 30, 1976, which the trial court denied.

Out of the presence of the jury, and before introduction of any evidence at trial, counsel for Meeker filed a motion in limine, seeking to forbid the mention of a 20 mile per hour speed limit sign until such time as the defendant proved that the speed limit had been reduced by official action. The court granted the motion.

After the motion was granted, a discussion ensued regarding the mention of the sign when and if a photograph depicting the scene, and thus showing the sign, was admitted into evidence. The trial court gave an ambiguous explanation of what was to happen at that time.

Counsel for Meeker asked for no further explanation and voiced no objection to the interpretation placed by the trial court upon its order.

Meeker contends that the trial court committed reversible error by admitting evidence which violates the order on the motion in limine and by refusing to strike that evidence after the defense rested without having introduced any ordinance.

Thelma Robinson was the first witness called by the defense. She briefly described the street on which the collision occurred. Defense counsel then asked her whether a certain photograph which he showed her was a true and accurate photograph of Clay Street looking from east to west in the block where the collision occurred. When Robinson answered affirmatively, defense counsel offered the photograph into evidence.

Meeker objected "for the reason that it contains a sign there which purports to tell what the speed limit is and this would be hearsay and inadmissible for that proof as it cannot be proved other than by the Terre Haute City Ordinance and until that is done this picture could do nothing but confuse and lead the Jury to believe the speed limit is something other than what the law sets that." The trial court overruled Meeker's objection and admitted the photograph into evidence. This photograph includes a view of the street, homes on each side of the street, and a sign marked "SPEED LIMIT 20."

Meeker cites Enyart v. Blacketor (1976), Ind.App., 342 N.E.2d 654, for the statement that "a party seeking to show negligence by the violation of a city ordinance setting a speed limit less than the general speed limit has the burden of proving the existence of a city ordinance setting the alleged limit."

In Enyart, as in the case at bar, the parties agreed that the speed limit in an urban district was thirty miles per hour, pursuant to IC 1971, 9-4-1-57(b) (Burns Code Ed.), unless that speed limit had been reduced by local authorities, as provided in IC 1971, 9-4-1-58(a) (Burns Code Ed.). In Enyart the Court of Appeals, Third District, ruled that the trial court did not err when it granted Blacketor's motion in limine barring reference to a twenty-mile-per-hour speed limit sign. Enyart had failed to introduce into evidence the ordinance imposing the reduced speed limit. Judge Hoffman went on to hold that evidence of an irregular speed limit sign would be both irrelevant and prejudicial.

Although Enyart appears to provide foundation for the elements of Meeker's argument, Meeker overlooks several important facts.

First, in Enyart the court on review considered whether the trial court erred in granting the motion in limine. In the case at bar, no one argues that the trial court erred in granting the motion in limine; instead, Meeker contends that the trial court erred in admitting evidence which violated the order on the motion in limine.

Second, the prejudicial nature of an irregular speed limit sign was discussed in Enyart along with negligence per se. In the case at bar, however, Robinson moved for judgment on the evidence because of an alleged showing of negligence per se, but the trial court properly denied the motion. Further, the trial court in the case before us gave no instruction on the theory of contributory negligence per se, based upon the purportedly reduced speed limit.

Third, in a later portion of the Enyart opinion Judge Hoffman discussed the value of the evidence for showing deviation from the reasonably prudent man standard. In so doing Judge Hoffman, writing for the court, recognized the general rule that violation of an irregular traffic control device directive was some evidence of negligence. He went on to qualify that statement by limiting that rule to traffic control devices warning of immediate danger or hazard. He then concluded that a speed limit sign did not warn of danger and thus the sign's presence could not be introduced as any evidence of negligence.

It should be noted that two of the three appellate judges deciding the Enyart case stated their beliefs, in separate opinions, that a speed limit sign provided a warning to motorists and as such could be admitted into evidence as some indication of negligence. Judge Garrard concurred with Judge Hoffman based on the discretion granted trial courts in admission of evidence. Judge Staton registered a dissent to Judge Hoffman's opinion.

We must agree with Judge Garrard and Judge Staton that an irregularly posted speed limit sign is relevant to the issue of whether a party acted as a reasonably prudent person would act while driving in an area where such a sign appeared. If our holding in this case requires us to depart at all from Judge Hoffman's reasoning, we depart only to the extent that Judge Hoffman seemingly decides as a matter of law that such evidence is inadmissible; we define the scope of review as a search for abuse of discretion based upon the particular circumstances.

At no time has Meeker argued that the photograph is not accurate. He argues only that its admission was prejudicial and that its admission amounted to a violation of the motion in limine granted by the trial court. In general, the admission or exclusion of evidence in the form of photographs is within the sound discretion of the trial court. The action of the trial court will not be disturbed except for abuse of discretion. Hubble v. State (1973), 260 Ind. 655, 299 N.E.2d 612. "(A) photograph proved to be a true representation of the person, place, or thing which it purports to represent is competent evidence to visually display that which a witness may verbally describe." Dudley Sports Co. v. Schmitt (1972), 151 Ind.App. 217, 279 N.E.2d 266. Accordingly, we consider the photograph and the testimonial references together in considering whether the trial court committed error.

The initial mention of speed or speed limits on the street in question was by Meeker. He stated the speed limit to be 30 miles per hour and that he had seen Robinson coming but was unable to judge her speed. The second reference to a speed limit came during the cross-examination of the investigating police officer when he stated the speed limit was 20 miles per hour. Meeker neither objected nor...

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