Reuille v. Bowers

Decision Date11 September 1980
Docket NumberNo. 3-1077A257,3-1077A257
Citation409 N.E.2d 1144
PartiesJohn C. REUILLE, Appellant (Defendant Below), v. Brenda BOWERS, Cynthia Bowers, Robert Bowers, and Merlin Bowers, Appellees (Plaintiffs Below).
CourtIndiana Appellate Court

John P. Price, Grace M. Curry, David O. Tittle, Bingham, Summers, Welsh & Spilman, Indianapolis, William F. McNagny, Barrett, Barrett & McNagny, Fort Wayne, for appellant.

Ronald L. Sowers, M. Robert Benson, Sowers and Benson, Fort Wayne, William Colson, William Hicks, Colson and Hicks BUCHANAN, Chief Judge.

Miami, Fla., John W. Whiteleather, Jr., Whiteleather and Whiteleather, Columbia City, for appellees.


Defendant-appellant John C. Reuille appeals a $773,500 judgment in a jury trial involving a highway auto collision in which the trial court granted judgment in favor of the plaintiffs-appellees, Brenda Bowers, Cynthia Bowers, Robert Bowers and Merlin Bowers (Bowers) on the evidence at the close of all the evidence, claiming (inter alia) lack of duty, excuse for violation of a statute, lack of sole proximate cause, intervening cause, and excessive damages.

We reverse.


The facts most favorable to the appellant-defendant Reuille reveal that on the morning of September 24, 1974, at approximately 9:00 a. m., Reuille was driving to work in a westerly direction along U.S. 30, a two lane highway. About four or five miles from the "T" intersection of Franke Road he put his car on "cruise control" at 55 miles per hour. About seven or eight tenths of a mile from this intersection as he rounded a curve, he observed two cars in his lane ahead traveling slower than he. When the first car was about fifty feet in front of him (at about three tenths of a mile from Franke Road) he pulled into the left lane of the two lane highway to pass. About 800 feet from the intersection, when he was three-fourths of the way around the first car, he noticed the next car ahead was going even slower than the car he was passing and that the gap between the two cars was narrowing so that only about fifty feet remained. At this point he decided to pass the second car.

As he started to pass the second car Reuille saw a small yellow Vega (in which the Bowers were passengers) at least fifty feet from the highway intersection proceeding on Franke Road at approximately ten miles per hour in a northerly direction towards the highway. When he was about two hundred feet from the intersection Reuille realized the Vega was continuing to proceed onto the highway and into his south or eastbound lane. He applied his brakes. The nearly head-on collision occurred about fifty feet east of the intersection and about nine feet south (to the left) of the center line of Highway 30.

Mrs. Whitacre (not a party) was driving the Vega containing her son and the three Bowers children (Brenda, age 6, Cynthia, age 10, and Robert, age 14).

The day was bright and clear. From thirty-seven feet back from the intersection the view from Franke Road was clear to the east for a distance of eight tenths of a mile. Mrs. Whitacre testified that she stopped at the stop sign, looked both ways, and proceeded to turn right onto the highway. She did not see the Reuille car until the instant before the collision. Reuille's car produced 140 feet of skid marks to the point of impact and another twenty-four feet of skid marks beyond that point. The Vega produced no skid marks before impact, although it made fifty-five feet of marks on the pavement after that point.

Bowers' complaint alleged that Reuille negligently caused a collision between his vehicle and the Vega driven by Carol Whitacre in which the plaintiffs were passengers, causing injuries and damages to the plaintiffs.

At trial Reuille presented no evidence, but rested following the plaintiffs' presentation. However, he was called as a witness by the Bowers and did testify. The Bowers then moved for Judgment on the Evidence against Reuille on the issue of liability, which motion reads as follows:

Come now plaintiffs, by counsel, at the close of all the evidence and before argument and moves (sic) the court pursuant to T.R. 50 (Judgment on the evidence (1) There is not an issue as to the negligence of the Plaintiffs (i. e. contributory negligence), per the pretrial order and the admission of the Defendant, and the evidence is without conflict.

Directed Verdict) for judgment on the evidence on the following questions (issues) of Defendant's liability for the following reasons and on the following grounds:

(2) As a matter of law based upon the evidence presented, the evidence is without conflict and susceptable (sic) of only the one inference that the defendant John Rueille (sic), was in the left lane of U.S. 30 (east bound lane) in a westerly direction within 100 feet of the intersection of U.S. 30 and Franke Road at the time of the collision without legal justification or excuse, thus he was negligent as a matter of law. We incorporate our liability brief filed herewith in support hereof.

(3) The evidence is without conflict and the only inference therefrom and thereof is that the aforesaid negligence of Defendant, John Reuille, was a substantial producing cause of the injuries sustained by the Plaintiffs, a proximate cause thereof. By reference thereto Plaintiff's (sic) attach their liability brief filed herewith in support thereof and restatement of torts 2d on proximate cause, and Prosser on torts cause in fact and proximate cause.

WHEREFORE, Plaintiffs pray the court to grant them judgment on the evidence/directed verdict against the Defendant on the questions aforesaid (liability of Defendant-negligence as a matter of law and a proximate cause of the injuries sustained) and for all other just and proper relief in the premises.

The court sustained the motion. Prior to final arguments the court instructed the jury as follows:

COURT: The time has come for the hearing of final argument by counsel. Plaintiffs' counsel has the opportunity to open and close final argument, with counsel for defendant speaking in between those two times. I'll tell you now that the Court has ruled as a matter of law that the defendant, John Reuille, was liable for the injuries, if any, sustained by the parties so rather than having two decisions to make as you were informed in opening statements you will determine just the damages, if any, incurred by the parties. Mr. Colson, you may proceed.

The jury returned separate verdicts in favor of each of the three Bowers children and their father for a total amount of $773,500.00, and the court entered judgments based upon the verdicts.

Following denial of his Motion to Correct Errors, Reuille perfected this appeal.


Because we reverse, we address only these issues:

1. Did Reuille owe a duty to the Bowers under Ind.Code 9-4-1-69(a)(2) 1 considering the type of intersection involved and the class of persons injured?

2. Did material issues of fact exist concerning Reuille's violation of a statutory duty, and was such violation excused or justified?


ISSUE ONE -Did Reuille owe a duty to Bowers under Ind.Code 9-4-1-69(a)(2) (hereinafter the Passing Statute) considering the type of intersection involved and the class of persons injured?

A. Applicability of the Statute.

PARTIES' CONTENTIONS -Reuille contends that the Passing Statute relating to intersections is not applicable because the meeting of Highway 30 and Franke Road does not constitute an intersection protected by the statute.

Bowers argues that the undisputed evidence established that the junction is an intersection governed by the Passing Statute.

CONCLUSION -There is no evidence to support the argument that the junction of Franke Road and Highway 30 does not constitute an intersection, therefore the trial court properly made findings on this issue as a matter of law.

A duty to the plaintiff, the first of the three negligence elements, 2 is stated somewhat differently when statutory negligence is alleged:

First, the court must scrutinize the statute in question and consider "the purpose of the enactment, the persons whom it was intended to protect, and the injuries which it was intended to prevent" to determine if the statute is such that the violation complained of would constitute negligence. Sheridan v. Siuda (1971), 150 Ind.App. 395 at 406, 276 N.E.2d 883 at 889. In making this inquiry, the trial court is interpreting the statute to ascertain whether a particular duty (or prohibition) exists.

Smith v. Cook (1977), Ind.App., 361 N.E.2d 197, 200. The trial court must determine as a matter of law the specific requirement, the absolute standard of conduct or absolute duty, to which the defendant is obligated to conform.

The Passing Statute (Ind.Code 9-4-1-69(a)(2)), which Reuille violated, provides:

(a) No vehicle shall at any time be driven to the left side of the roadway under the following conditions:

(2) When approaching within one hundred (100) feet of or traversing any intersection or railroad grade crossing.

Whether the joining of two roadways is an intersection is generally a question of fact to be determined after considering several factors, including the statutory definition of an intersection, 3 the character of the roads, their appearance, whether the roads are public or private, the type of construction, widths and amount of use, the presence or absence of traffic control devices, and the drivers' familiarity with the intersection. Chapman v. Harrison Pipeline Co. (1972), La.App., 261 So.2d 82; Guillory v. Travelers Ins. Co. (1970), La.App., 241 So.2d 772; Fontenot v. Pan American Fire & Casualty Co. (1968), La.App., 209 So.2d 105; Normand v. American Home Assurance Co. (1965), La.App., 171 So.2d 804; Reese v. National Surety Corp. (1954), 224 S.C. 489, 80 S.E.2d 47; Annot., 7 A.L.R.3d 1204, 1243-56 (1966); Annot., 53 A.L.R.2d 850 (1957).

The relevant evidence on this issue at trial, consisting of maps, charts, photographs,...

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