Rentschler v. Hall
| Citation | 69 N.E.2d 619,117 Ind.App. 255 |
| Decision Date | 21 November 1946 |
| Docket Number | 17506. |
| Parties | RENTSCHLER v. HALL |
| Court | Court of Appeals of Indiana |
Appeal from Miami Circuit Court; Henry S. Bailey, Judge.
Action by Strother E. Hall, by Fuller Hall, his next friend, against Katharine Grace Rentschler, to recover for injuries sustained by the plaintiff when struck by defendant's automobile. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment affirmed.
Russel J. Wildman, of Peru, and Selden J. Brown, of Rochester, for appellant.
Charles C. Campbell and Arthur Metzler, both of Rochester, for appellee.
The appellee, in an action brought by his father and next friend recovered a judgment against the appellant for damages on account of personal injuries sustained in an automobile accident.
From the evidence most favorable to the appellee it could be found or logically inferred that he, a boy about seven years and six months of age, was walking east on the north edge of a hard top county road on the afternoon of a clear, bright day. The appellant, overtaking him in an automobile, sounded the horn when about two hundred feet away. He looked back and the appellant tried to apply the brakes which resulted in causing her automobile to swerve back and forth two or three times from one side of the road to the other. The boy, seemingly frightened and attempting to dodge the car, veered into the road a foot or two, then ran to the fence on the north side of the right of way, along the fence five or six feet, then angled across the road in front of appellant's oncoming automobile. The car struck him on the south side of the road, breaking his leg and causing other less serious injuries. Just prior to the accident the appellant was driving the automobile forty to forty-five miles per hour and was going about thirty miles per hour when the boy was struck.
The complaint alleges negligence in that the appellant was driving at a dangerous, careless and reckless rate of speed, to-wit: fifty miles per hour, at a time when the brakes of said automobile were not in condition to stop said automobile within a reasonable distance; that as the appellant closely approached the appellee she carelessly and negligently sounded the horn in a loud and reckless manner, frightening the appellee so that he crossed the road, and that while he was so crossing she carelessly and negligently accelerated the speed of the automobile in an attempt to pass the appellee before he could completely cross the traveled portion of the road.
Error is predicated solely upon the giving and the refusal of certain instructions.
Appellee tendered Instruction No. 18, given by the court, which reads as follows:
The statute referred to in the instruction, Burns' 1940 Repl. § 47-2228, provides that 'every motor vehicle, * * * when operated upon a highway shall be equipped with brakes adequate to control the movement of and to stop and hold such vehicle.' The appellant insists that a violation of that statute is only prima facie evidence of negligence; that all other circumstances in evidence must be considered in determining the question of negligence, and that in any event the court invaded the province of the jury in telling them that a violation of this statute was negligence 'as a matter of law' rather than negligence ' per se.'
For many years it has been the law in Indiana, as it has in a majority of the states, that the violation of a statutory duty ordinarily constitutes negligence per se, and not, as is the minority view, that such a violation can amount only to a circumstance to be considered, with other circumstances, on the question of negligence, or that such a violation is at most prima facie evidence thereof. Gagle v. Heath, 1944, 114 Ind.App. 566, 53 N.E.2d 547.
To sustain her position that the violation of the statute was only prima facie evidence of negligence in this case, the appellant cites Miles v. State, 1920, 189 Ind. 691, 129 N.E. 10; Buchanan v. Morris, 1926, 198 Ind. 79, 151 N.E. 385 and Conder v. Griffith, 1915, 61 Ind.App. 218, 111 N.E. 816. In the Miles case the court was not dealing with a statute which made certain speeds at certain places unlawful. It was dealing with a statute which made certain speeds at certain places prima facie evidence that the vehicle was being operated at a speed greater than was reasonable and prudent under all of the circumstances, and whether the speed at which the vehicle was being operated was in fact unlawful, could only be determined by a consideration of all the surrounding circumstances. The jury was told, in effect, that proof of the operation of a vehicle at speeds greater than those mentioned in the statute was a violation of the law. In holding the instruction erroneous, our Supreme Court pointed out that proof of such speeds, under the wording of the statute, was sufficient only to require an inference or give rise to a rebuttable presumption of a violation of the statute, and the court said [189 Ind. 691, 129 N.E. 12]: The instruction under consideration in Buchanan v. Morris, supra, was similar, and was held bad on the authority of the Miles case, supra. We are not here dealing with such a statute. We are dealing with a statute which makes the operation of a motor vehicle equipped with inadequate brakes a violation of the law, and not prima facie evidence of the violation thereof.
In Conder v. Griffith, supra, this court was dealing with a city ordinance which forbade the driving of a vehicle on the left side of any street unless in the necessary act of crossing it or passing a vehicle going in the same direction. The defendant in that case drove to the left side because the passageway on the right hand side was blocked. The jury was instructed that a violation of that statute was negligence and, if such negligence was the proximate cause of the plaintiff's injury he could recover unless he was guilty of negligence contributing to his injury.
In disposing of that case this court approved the instruction as an abstract proposition of law but stated that instructions should not only state correct principles of law but should be applicable to the issues and facts of the particular case in which they are given. We there recognized that there may be facts and circumstances in a particular case which would excuse a technical violation of an ordinance or statute, and render it improper for the court to declare as a matter of law that such violation constitutes actionable negligence. We there held that under the facts in that case the jury should have been permitted to determine whether the defendant had a reasonable excuse for driving on the left side of the road, and whether in so doing he exercised reasonable and ordinary care for the safety of others. The principle therein announced was recognized by our Supreme Court in Jones v. Cary, 1941, 219 Ind. 268, 37 N.E.2d 944.
In this case the appellant offered testimony to the effect that the brakes were adequate and in good working order and would stop and hold the automobile. On the other hand a witness who drove the automobile to take the boy from the scene of the accident to the hospital immediately after the accident occurred, testified that the brakes did not work; that he had to pump them quite a bit so that they would take hold. Thus under the evidence the only question that arose with regard to brakes was whether the appellant did or did not have sufficient brakes under the statute, and this question was submitted to the jury to decide. There were no facts or circumstances in evidence tending to show a technical violation of the statute or tending to excuse such a violation, and therefore, no occasion to submit to the jury the question as to whether the appellant had a reasonable excuse for violating it. We believe, as said in Conder v. Griffith, supra, that the rule announced in that case is a reasonable one and will tend to promote justice and the practical enforcement of the spirit and purpose of such statutes and ordinances, but that rule has no application to the case at bar.
The courts of many states have said that the violation of a statutory duty constitutes negligence 'as a matter of law.' This court, in Pennsylvania Railroad Co. v. Huss 1933, 96 Ind.App. 71, 180 N.E. 919, said the violation of a statute governing the operation of motor vehicles was negligence 'as a matter of law,' and our Supreme Court, in Jones v Cary...
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