Redd v. Indianapolis Rys., 18081

• Decision Date: 19 March 1951
• Docket Number: No. 18081,18081
• Citation: 97 N.E.2d 501,121 Ind.App. 472
• Parties: REDD v. INDIANAPOLIS RAILWAYS, Inc.
• Court: Indiana Appellate Court

Page 501

97 N.E.2d 501

121 Ind.App. 472

REDD v. INDIANAPOLIS RAILWAYS, Inc.

No. 18081.

Appellate Court of Indiana, in Banc.

March 19, 1951.

Wilson S. Daily, John H. Daily, Indianapolis, Jonas P. Walker, Greenfield, for appellant.

Elbert R. Gilliom, Arthur L. Gilliom, Robert D. Armstrong; and Gilliom, Armstrong & Gilliom, all of Indianapolis, Arthur C. Van Duyn, Greenfield, for appellee.

CRUMPACKER, Judge.

The appellant claims to have been injured when a bus, owned and operated by the appellee and in which she was riding as a passenger for hire, collided with a truck on North Meridian Street in Indianapolis, Indiana. Alleging that said collision was due solely to the appellee's negligence, the appellant sued but was denied relief by a jury and over her motion for a new trial judgment went accordingly.

Among others the court gave three instructions to the jury the propriety of which constitutes the only questions presented by this appeal. We find that we need consider but one. Instruction No. 23 reads as follows:

'If you find from a preponderance of the evidence that at the time alleged in the complaint the operator of defendant's bus was suddenly placed in a position of hazard which required the operator to act in a sudden emergency to avoid colliding with another motor driven vehicle, then I instruct you that in such an emergency said operator would be required to act only in such manner as would an ordinarily prudent person under the same or similar emergency. Therefore, if you find from a preponderance of the evidence that the bus operator was confronted by a sudden emergency on the occasion in question, and that in such emergency he did what an ordinarily prudent person would have done under the same or similar circumstances, then the plaintiff can not recover in this action.'

The appellant contends that this instruction mandates the jury to return a verdict for the appellee if the operator of its bus suddenly found himself in a position of peril and thereafter did all that an ordinarily prudent person would have done in the same or a similar emergency, regardless of the fact that his own negligence may have been responsible for the perilous position in which he found himself. If such be the effect of the instruction it is clearly erroneous. It is universally held that the doctrine of sudden peril has no application to a situation where one who seeks to have the quantum of his care measured by its yardstick, has brought about his perilous position by his own negligence. The peril must have been caused by the acts or omissions of another if conduct which, in the absence of such peril would be considered negligent, is to be excused or justified under the circumstances. Hedgecock v. Orlosky, 1942, 220 Ind. 390, 44 N.E.2d 93. See also 65 C.J.S., Negligence, § 17(e), p. 412. This state is also thoroughly committed to the proposition that when a court, through an instruction, directs a verdict on condition that the jury finds from the evidence that certain facts exist, such instruction must recite all the facts and conditions essential to such a verdict. If an essential fact is omitted the instruction is erroneous and the error is not cured by supplying the omission in another instruction. Union Traction Co. v. Elmore, 1917, 66 Ind.App. 95, 116 N.E. 837, and cases cited; Dunbar v. Demaree, 1936, 102 Ind.App. 585, 2 N.E.2d 1003.

The...