Peckham v. Smith, No. 18993

• Docket Nº: No. 18993
• Citation: 130 Ind.App. 452, 165 N.E.2d 609
• Case Date: March 23, 1960
• Court: Court of Appeals of Indiana

Page 609

165 N.E.2d 609 130 Ind.App. 452 Ralph E. PECKHAM, Appellant,
v.
Roger SMITH, a Minor, by Jack C. Smith, His Next Friend, Appellee. No. 18993. Appellate Court of Indiana, Division No. 2. March 23, 1960.

[130 Ind.App. 453]

Page 611

Hugh E. Reynolds, Locke, Reynolds, Boyd & Weisell, Hugh Watson, Indianapolis, Ralph H. Waltz, Noblesville, for appellant.

[130 Ind.App. 454] Armstrong, Gause, Hudson & Kightlinger, Indianapolis, Campbell, Campbell, Malan & Kyle, Noblesville, Aribert L. Young, Indianapolis, Frank W. Campbell, Noblesville, for appellee.

GONAS, Judge.

This action was brought by appellee for personal injuries sustained while riding a bicycle and colliding with an automobile operated by appellant.

Upon the issues joined, the cause was submitted to a jury for trial. The verdict was in favor of appellee and judgment was entered accordingly.

Appellant argues that the verdict is not sustained by sufficient evidence; that it is contrary to law; and that the court should have directed a verdict in his favor. This requires an examination of the evidence most favorable to appellee.

It appears from the evidence that Washington Boulevard in Indianapolis is forty feet wide and runs in a general north and south direction, and that it is intersected by another paved highway known as East 46th Street, which is twenty-four feet wide and runs in a general east and west direction. There is an electric signal at the intersection with a flashing red light directing traffic on 46th Street and a flashing yellow light directing traffic on Washington Boulevard. There are street lights at the intersection, and the area adjacent to the intersection is a residential area.

Appellee, then eleven years of age, on November 10, 1954, shortly before 7:00 o'clock P.M. was riding his bicycle to a Boy Scout meeting on East 46th Street, approaching the intersection from the west, and appellant was operating his automobile in a northerly direction, approaching the intersection from the south. Both appellant and appellee were familiar with the intersection. It was dark. There was a red reflector tape on the front and rear fenders of the bicycle, as well as on [130 Ind.App. 455] the chain guard and the entire length of the tank. The street lights were on at that intersection.

When appellee reached the intersection he stopped and looked to the south, where he saw appellant's automobile approaching. Appellant's automobile was at about the first or second house north of 14th Street, or between the two houses, and was about 400 feet from the intersection where the accident occurred.

Appellee testified that he thought he had enough time and proceeded east into the intersection. He remembers nothing after he left the southwest curb until after he was in the hospital.

Following the accident appellant's automobile came to a stop on the east side of Washington Boulevard about two or three feet from the east curb, with its rear bumper about two feet north of the north curb of 46th Street. There were skid marks on the pavement starting just south of the south curb line of 46th Street and continuing to where appellant's car stopped.

After the accident, appellee was found lying in the street from six to twelve feet in front of the automobile, and his bicycle

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was three or four feet further north. There was an indentation on the fender on the left side of appellant's car just above the bumper and below the headlight.

Appellant testified that the impact from the collision between the car and the bicycle occurred close to the north curb line of 46th Street, and that appellee was thrown through the air from the point of impact, and went a distance of thirty to thirty-two feet. This is the view of the facts presented by appellee.

Appellant duly filed a motion for a new trial, which was overruled. Appellant's motion for a new trial contained the following specifications:

[130 Ind.App. 456] 1. The verdict of the jury is not sustained by sufficient evidence.

2. The verdict of the jury is contrary to law.

3. The damages assessed by the jury are excessive.

4. The Court erred at the trial in overruling the motion of the defendant for a directed verdict filed at the close of plaintiff's evidence, and in refusing to instruct the jury to return a verdict for the defendant.

5. The Court erred at the trial in overruling the motion of the defendant for a directed verdict filed at the close of all the evidence, and in refusing to instruct the jury to return a verdict for the defendant.

6. The Court erred at the trial in giving to the jury plaintiff's tendered Instruction No. 3, to the giving of which defendant objected, in accordance with Rule 1-7, as follows:

'The defendant now, before the beginning of the argument, objects to the giving of Plaintiff's Instruction 3 for the reason that the instruction is not within the issues presented by the complaint and the answer filed thereto. No issue or no pleading attempts to allege that the negligence of the parents of the plaintiff contributed in any way to his alleged injuries and the same is clearly without the issues of the complaint and should not even be mentioned either affirmatively or negatively.'

7. The Court erred at the trial in giving to the jury plaintiff's tendered Instruction No. 17, to the giving of which defendant objected, in accordance with Rule 1-7, as follows:

'The defendant objected to Instruction No. 17 tendered by the plaintiff for the reason that the instruction is premised on the fact that the plaintiff was of a sufficient age and understanding to be held accountable for contributory negligence and then states that if he was so accountable that he had a right to rely until he had notice to the contrary, upon the assumption that the defendant would keep [130 Ind.App. 457] a proper lookout for the further reason that the intersection, to accurately state the rule of law applying to the facts in the case, should state that both plaintiff and defendant, under such circumstances have the right to assume that the other would obey the law as related to the situation of the parties at the time of the accident and as the instruction states the jury would be informed that the defendant would be held accountable and that the plaintiff had a right to assume certain acts on the part of the defendant, but it does not state that the defendant had the same right to assume those facts and circumstances in so far as the plaintiff is concerned.'

8. The Court erred at the trial in giving to the jury the plaintiff's tendered Instruction No. 19, to the giving of which defendant objected in accordance with Rule 1-7, as follows:

'The defendant objects to plaintiff's instruction 19 because it is an inaccurate statement of the law relating to the duties and obligations of one approaching

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an intersection. The instruction informs the jury that one approaching an intersection must proceed with reasonable safety under all circumstances existing as shown by the evidence, whereas a proper instruction would be that it must be as shown by the evidence at the time of and immediately prior to the entrance into the intersection. Under the instruction as written it does not take into consideration that he is required to act with reasonable safety under the circumstances existing at the time that he enters the intersection and the instruction is not so...