Perry v. Goss

• Decision Date: 17 November 1969
• Docket Number: No. 2,No. 469,469,2
• Citation: 252 N.E.2d 252
• Parties: Roscoe PERRY, Appellant, v. Eugene T. GOSS, Jr., Eugene T. Goss, Appellees. A 58
• Court: Indiana Appellate Court

Page 252

252 N.E.2d 252

Roscoe PERRY, Appellant, v. Eugene T. GOSS, Jr., Eugene T. Goss, Appellees.

No. 469 A 58.

Appellate Court of Indiana, Division No. 2.

Nov. 17, 1969.

Rehearing Denied Dec. 17, 1969.

John F. Townsend, Jr., Indianapolis, for appellant; Townsend & Townsend, Indianapolis, of counsel.

James E. Rocap, Jr., John A. Young, Indianapolis, for appellees; Rocap, Rocap, Reese & Young, Indianapolis, of counsel.

PFAFF, Chief Justice.

Appellant, a pedestrian, was injured on July 6, 1967, while attempting to cross Minnesota Street at the intersection of Minnesota and Laurel Streets in Indianapolis, Indiana. Appellee, Eugene T. Goss, Jr., a minor, was driving his vehicle in a northerly direction on Laurel Street, and at the intersection of Minnesota and Laurel Streets appellee failed to stop before turning onto Minnesota Street, a preferential street, thereby striking appellant as appellant attempted to cross Minnesota Street. Trial to a jury resulted in a verdict in appellee's favor, and appellant's motion for new trial was subsequently overruled.

Appellant first argues that the court was in error in giving, over objection, the court's instruction No. 5, which states as follows:

'The burden on the question of contributory negligence in actions for personal injuries and for damages to property, rests upon the defending party.

'Contributory negligence on the part of the plaintiff must be established by a fair preponderance of the evidence; but if all the evidence, whether introduced on the part of the plaintiff or the defendant, should establish the fact of contributory negligence on the plaintiff's part, it would avail the defending party and prevent the plaintiff from recovering.'

The court's instruction No. 5 is a mandatory instruction which informed the jury of the fact that if there was evidence that the appellant was contributorily negligent, established by a fair preponderance of the evidence, such evidence would preclude plaintiff-appellant's recovery. While a mandatory instruction is permissible, an erroneous mandatory instruction which positively directs the jury to find for one party and against another party, while omitting an essential element, properly serves as a basis for reversal. In Wachtstetter v. Hardin (1969), Ind.App., 250 N.E.2d 504, this court discussed the applicable legal principles relating to mandatory instructions. The court stated:

'The often cited case of Vance v. Wells (1959), 129 Ind.App. 659, 159 N.E.2d 586, provides a sound definition of a mandatory instruction and also states the acknowledged rule upon which appellant based her theory of reversal. It is stated at pages 666 and 667, 159 N.E.2d at page 590 as follows:

'* * * A mandatory instruction unequivocally charges the jury that if they find from a preponderance of the evidence that a certain set of facts exists, they must render a verdict in accordance therewith, either for the plaintiff or in favor of the defendant. It positively directs the jury to find for one party and against the other.

It is necessary that all the essentials to either party's right to recover must be included in such an instruction.' (Emphasis supplied)'

In the Wachtstetter case, supra, this court referred to the case of Snow v. Sutton (1960), 241 Ind. 364, 170 N.E.2d 816, wherein the Supreme Court stated at page 368 of 241 Ind., at page 818 of 170 N.E.2d at follows:

'This instruction was mandatory in character and was erroneous, for it is well settled that where a...