Neese v. Boatright, 18487

• Decision Date: 01 April 1954
• Docket Number: No. 18487,18487
• Citation: 118 N.E.2d 510,124 Ind.App. 680
• Parties: NEESE v. BOATRIGHT.
• Court: Indiana Appellate Court

Page 510

118 N.E.2d 510

124 Ind.App. 680

NEESE v. BOATRIGHT.

No. 18487.

Appellate Court of Indiana, In Banc.

April 1, 1954.

Joseph F. Quill, Charles W. Symmes, Symmes, Fleming & Symmes, Indianapolis, for appellant.

Fenton, Steers, Beasley & Klee, Indianapolis, for appellee.

ACHOR, Judge.

This is an action in negligence for personal injury and property damage. At the time of the collision, appellant's car was making a left hand turn from the south side of West Michigan Street, across the north side thereof, for the purpose of entering the driveway of the Coleman Hospital at Indianapolis. Appellee was driving his automobile westward along the north side of said street. The complaint among other things alleged that appellee was driving his automobile at an unreasonably high rate of speed. Judgment was for the defendant (appellee).

One of the errors assigned as cause for a new trial was the giving of appellee's instruction numbered 8. This instruction was as follows:

'You are further instructed that the violation of any statute of the State of Indiana regulating the use and operation of motor vehicles upon the highways of such State is a negligent act. If you find from a fair preponderance of the evidence that the plaintiff, driver of said automobile, violated any of the laws of the State of Indiana at the time and place in question and as shown by the evidence, then such violation of law was a negligent act and if you further find from a fair preponderance of the evidence that such negligent act or acts of such plaintiff, the driver, was the sole proximate cause of said accident and injuries, if any, sustained by plaintiff, the plaintiff would not be entitled to recover in this action.'

The objection to the giving of said instruction was as follows:

'The plaintiff objects to defendant's tendered instruction No. 8 for the reason that the violation of a statute is only prima facie evidence. It also goes beyond any issue as the statute quoted would make the jury guess as to whether or not such statute was violated.'

The instruction was erroneous for two reasons. First, it instructed the jury 'that the violation of any statute of the State of Indiana regulating the use and operation of motor vehicles upon the public highways * * * is a negligent act.' The law upon this issue was discussed at length in the case of Larkins v. Kohlmeyer, 1951, 229 Ind. 391, 400, 401, 98 N.E.2d 896, 900. In that case the court stated:

'Thus it may be said that where one has violated the provisions of a statute or ordinance in the operation of an automobile on a public highway, he is guilty of negligence as a matter of law unless the evidence discloses that compliance was impossible or non-compliance was excusable because of circumstances resulting from causes or things beyond his control, and in no way produced by his own negligence, or his conduct comes within an excuse or exception specifically provided in the statute itself. It follows that whether conduct violative of the provisions of the statute is negligent conduct may sometimes be a question for the jury to determine. When there is evidence that a statute governing the operation of motor vehicles has been violated under circumstances mentioned in the rule above stated, such violation becomes, in effect, nothing more than prima facie evidence of negligence, subject to being overcome by proof to the contrary, and the jury should be so instructed. * * * Northern Indiana Transit v. Burk, supra [(1950), 228 Ind. 162, 89 N.E.2d 905, 17 A.L.R.2d 572]. In such cases we think it would be proper to instruct the jury that if they find from a fair preponderance of the evidence that the defendant violated the provisions of the statute, he was guilty of negligence, unless they further find from a fair preponderance of the evidence that compliance was impossible or noncompliance was excusable under the rule above stated.

'It is not error to instruct the jury that the violation of a statute is negligence per se, or negligence as a matter of law, when there is no evidence or permissible inference of any fact or facts which would tend to excuse such conduct. Northern Indiana Transit v Burk, supra; Hancock Truck Lines v. Butcher, 1950 , 94 N.E.2d 537; * * *.'

The instruction erroneously failed to fully inform the jury that the violation of this statute for the control of traffic is negligence 'unless * * * compliance was impossible or noncompliance was excusable under the rule above stated.' Larkins v. Kohlmeyer, supra. This court, after considering the issues above presented and the opinion thereon expressed in the Larkins case, supra, stated the rule as follows:

'* * * violation of the statute could be 'nothing more than prima facie evidence of negligence, subject to being overcome by proof to the contrary, and the jury should be so instructed.' Failure to (so) instruct the jury was error.'

Thompson v. Ashba, 1951, 122 Ind.App. 58, 65, 102 N.E.2d 519, 523. Furthermore, since the...