Ryan v. Leach, 20199

• Decision Date: 28 April 1966
• Docket Number: No. 20199,No. 1,20199,1
• Citation: 215 N.E.2d 877,139 Ind.App. 14
• Parties: Marvel RYAN, Appellant, v. William G. LEACH, Appellee
• Court: Indiana Appellate Court

Page 877

215 N.E.2d 877

139 Ind.App. 14

Marvel RYAN, Appellant, v. William G. LEACH, Appellee.

No. 20199.

Appellate Court of Indiana, Division No. 1.

April 28, 1966.

[139 INDAPP 15] Buena Chaney, Thomas H. Hicks, Mann, Mann, Chaney, Johnson & Hicks, Terre Haute, for appellant.

D. Joe Gabbert, Dix, Dix, Patrick, Ratcliffe & Adamson, Terre Haute, John McFaddin, Rockville, for appellee.

WICKENS, Judge.

Appellant asks that this court reverse the judgment below solely because of one instruction given to the jury.

Appellant was plaintiff in an action for personal injuries and the jury returned a defendant's verdict.

It is agreed by the parties that a collision causing personal injuries to appellant occurred while the car in which she was [139 INDAPP 16] a passenger was being properly operated. Thus, there was no issue of contributory negligence by plaintiff-appellant.

The instruction complained of was termed by appellant to be a mandatory instruction in that it positively directed the jury to find for defendant-appellee if the jury found that the collision was 'caused' by a mechanical failure of defendant's automobile brakes, which condition was not reasonably foreseeable, the whole instruction being:

'A person who is driving an automobile on the public highways is not bound to anticipate or foresee any mechanical failure on the part of his automobile unless he actually knew of the defective condition or could have discovered the same in the exercise of reasonable care. Therefore, if you find that the collision in this case was caused by a failure of the brakes on the automobile of the defendant, and if you further find the that the defendant did not know that the brakes on his automobile were defective or that he could not have discovered the defective condition by a reasonably careful inspection, your verdict must be for the defendant.'

We find it to be mandatory.

'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 therwith, either for the plaintiff or in favor of the defendant. It positively directs the jury to find for one party and against the other.' Vance v. Wells (1959), 129 Ind.App. 659, 666, 667, 159 N.W.2d 586.

The specific objection to the instruction was that it omitted the element of proximate cause.

The objection to the instruction should have been sustained. Mechanical failure which was merely one of the causes of injury would not defeat recovery, assuming the defendant's negligence to be a proximate cause and the failure to be not reasonably foreseeable.

To clarify this further, the mechanical failure referred to in the instruction weas a matter of defense. It...