Nelson v. Metcalf, 3-1081A262
Decision Date | 17 May 1982 |
Docket Number | No. 3-1081A262,3-1081A262 |
Citation | 435 N.E.2d 39 |
Parties | Elie NELSON, Jr., Appellant (Plaintiff Below), v. Charles METCALF and Evelyn Conners, Appellees (Defendants Below). |
Court | Indiana Appellate Court |
Harry A. Psimos, Hawk P. C. Kautz, Merrillville, for appellant.
Robert D. Hawk, (Robin D. Pierce, Merrillville, of counsel), Spangler, Jennings, Spangler & Dougherty, P. C., Merrillville, for appellees.
On November 20, 1977, a collision occurred between the motorcycle owned and driven by Elie Nelson, Jr., and an automobile driven by Charles Metcalf. Evelyn Conners owned the automobile and had loaned it to Metcalf knowing that he was under 18 years of age, had a learner's permit, and would be unaccompanied by a licensed relative. The collision occurred at the intersection of Ninth Avenue and Stevenson Street in Gary, Indiana at approximately 5:30 P.M. As Metcalf made a left turn from Ninth Avenue onto Stevenson Street, Nelson came from the opposite direction on Ninth Avenue and entered into the intersection in which Metcalf was turning across Nelson's lane. As a result of the accident, Nelson incurred substantial injuries and filed a cause of action for personal injury damages which he alleged resulted from negligence on the part of the defendants. The case was tried before a jury who found in favor of the defendants and against Nelson. Nelson's appeal, which arises from a negative verdict and judgment entered in Porter Superior Court, raises the following issues:
(1) whether the trial court erred in giving an instruction regarding the wearing of protective headgear; and
(2) whether the trial court erred in giving an instruction regarding contributory negligence.
The trial court adopted defendants' Instruction No. 7 as its own Instruction No. 21 and instructed the jury as follows:
(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 a highway in compliance with legal requirements and with the duty of all persons to use due care.
The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but said driver, having so yielded and having given a signal when and as required by this act (9-4-1-1-9-4-1-137), may make such left turn and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield right-of-way to the vehicle making the left turn (Acts 1939, ch. 48 § 78, p. 289).
Every vehicle upon a highway within this state between the time from sunset to sunrise and at any other time when, due to insufficient light or unfavorable atmospheric conditions, persons and vehicles on the highway are not clearly discernible at a distance of 500 feet ahead shall display lighted head lamps.
9-8-9-2 MOTORCYCLES-PASSENGERS-HEADLAMPS-Use of traffic lanes-Other laws applicable.
In addition to all other laws and regulations applicable to the driving and operation of motorcycles on the public streets and highways, the following shall also apply: (e) Headlamps shall be illuminated at all times when a motorcycle is in operation.
Sec. 3. At all times when a motorcycle is being driven or operated on the public streets or highways of this state, the driver and passenger shall:
(a) Wear protective headgear meeting the minimum standards set by the commissioner of motor vehicles.
(b) Shall have protective glasses, goggles or transparent face shields in their possession. (Formerly: Acts 1967, c. 213, s. 3).
"If you find from a fair preponderance of the evidence that either party hereto violated this statue (sic) without excuse of violation than (sic) that violation constitutes negligence."
Nelson objected to Instruction No. 21:
After the jury had retired to deliberate, but before returning its verdict, Nelson discovered that IC 1971, 9-8-9-3 was not in effect at the time of the accident. He renewed his objection to Instruction No. 21 and moved that the trial court re-instruct the jury, which the trial court refused to do.
Indiana Rules of Procedure, Trial Rule 51(C) provides:
(Emphasis added.)
The record reveals that prior to submitting the case to the jury, counsel for both parties met with the trial judge in chambers to go over the instructions which would be given, and to make...
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Prange v. Martin
...by the court. It is well established that an instruction, given without objection, becomes the law of the case. Nelson v. Metcalf (1982), Ind.App., 435 N.E.2d 39, 41; Royer v. Pryor (1981), Ind.App., 427 N.E.2d 1112, 1115. As such, it is the standard by which we review the case--the obvious......
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Johnson v. Anya Elizabeth Wait As Pers. Representative of The EState Jon Wait
...proper objections to instructions, once those instructions are read to the jury, they become the law of the case.Nelson v. Metcalf, 435 N.E.2d 39, 41 (Ind.Ct.App.1982). Because of the parties' acquiescence, we find no reversible error in the procedure followed by the trial court, but we cau......
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JOHNSON v. ANYA ELIZABETH WAIT AS Pers.
...proper objections to instructions, once those instructions are read to the jury, they become the law of the case. Nelson v. Metcalf, 435 N.E.2d 39, 41 (Ind. Ct. App. 1982). Because of the parties' acquiescence, we find no reversible error in the procedure followed by the trial court, but we......
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Reed v. Saint-Gobain Containers, Inc.
...the trial court to review the exact legal issue involved. Failure to do so waives the claimed error on appeal." Nelson v. Metcalf, 435 N.E.2d 39, 42 (Ind. Ct. App. 1982); Diaz v. Duncan, 406 N.E.2d 991, 997 (Ind. Ct. App. 1980). Therefore, Reed has waived any error with respect to whether t......