Scott v. Sisco, 18815

• Decision Date: 13 March 1959
• Docket Number: No. 1,No. 18815,18815,1
• Citation: 129 Ind.App. 364,156 N.E.2d 895
• Parties: William SCOTT, Appellant, v. Jane Brackney SISCO, Appellee
• Court: Indiana Appellate Court

Page 895

156 N.E.2d 895

129 Ind.App. 364

William SCOTT, Appellant, v. Jane Brackney SISCO, Appellee.

No. 18815.

Appellate Court of Indiana, Division No. 1.

March 13, 1959.

Homer Ingram, New Port, Hansford C. Mann, Terre Haute, for appellant.

Rosenfeld, Wolfe & Allen, Terre Haute, for appellee.

COOPER, Chief Judge.

This is an appeal by appellant from the trial court's denial of his motion for a new trial.

Appellee has filed a motion to dismiss this appeal with supporting briefs on the grounds that appellant failed to comply with Rule 2-17(e) of the Rules of the Supreme Court by failing to contain, under the heading of 'Argument', a specification of each cause in the motion for a new trial which is intended to be urged. After appellee's motion to dismiss was filed, appellant was granted leave to amend his brief as provided for under Rule 2-20 of the Supreme Court. Appellant, by interlineation, amended his brief by inserting, under the heading of 'Argument', the specification of his assignment of error. The other allegations of appellee's motion to dismiss are not well taken, and, therefore, said motion to dismiss this appeal is denied.

Appellant's motion for a new trial was predicated upon the alleged errors of the trial court in giving to the jury, over the objections of appellant, defendant-appellee's tendered instructions numbered two, three, five, seven, eight, ten, thirteen, nineteen, twenty and thirty-three.

Appellant has failed to discuss instructions five, thirteen, nineteen, twenty and thirty-three in the argument portion of his brief, and, therefore, any error of the court in giving said instructions are waived. Rule 2-17(e) Supreme Court of Indiana.

We are only concerned with the question of whether the trial court, in giving to the jury, said instructions numbered two, three, seven, eight and ten, prejudiced the appellant's substantial rights.

The appellant filed his amended complaint in the Circuit Court of Vermillion County, Indiana, seeking to recover damages for personal injuries arising out of the alleged negligence of the appellee, in the operation of an automobile, at about 6:45 A.M. on March 17, 1952, on a private roadway in the Girdler Corporation parking lot in said county, whereby said appellant was walking across said private roadway in said parking lot, causing appellant personal injuries.

That the specific acts of negligence alleged against appellee were as follows:

B. In failing to sound her horn as a warning to appellant;

C. In failing to apply the brakes of her automobile in sufficient time to avoid striking appellant;

D. In failing to have her automobile under control;

E. In failing to keep a lookout for pedestrians crossing said roadway;

F. In driving her automobile upon said parking lot at a speed of approximately 25 miles per hour, at a time when her vision was obscured by the rising sun.

Appellee filed answer to said complaint wherein she admitted driving the automobile involved in the accident, but denied all other allegations of the complaint. The issues thus joined were submitted to a jury for trial resulting in the jury returning a verdict for the appellee.

Appellant filed his motion for a new trial and from the overruling of said motion, appellant perfected this appeal assigning as error, the trial court's overruling of his motion for a new trial.

The evidence shows that on the 17th day of March, 1952, at approximately 6:45 A. M. The appellee was driving an automobile east on a roadway within a private parking lot at a speed of about ten miles per hour; that the appellant, along with several other men, were on the south side of said roadway and started north across said roadway to go to work; that the point on said roadway where appellant attempted to cross was not a crosswalk, nor was it an intersection; that a man named Jack Flowers started across ahead of appellant and Bob Pugh followed, and they were walking in single file. When appellant reached a point on said roadway about in the center, he was struck by the automobile driven by appellee. Appellant, before he started to cross said roadway, looked both east and west and failed to see appellee's automobile until it was within five or six feet from the place of impact; that appellant started to cross said roadway when appellee's automobile was less than fifteen feet from the point of impact. This was established by the testimony of Hubert Harney, a witness called by appellant, who was employed as a patrolman at said parking lot at the time of the accident, who testified, in substance, that he was looking west and saw appellee's automobile going east on said roadway at about ten miles per hour; that appellee was shielding her eyes with her hand; that he saw appellee's automobile about fifteen feet from the point of where the accident happened, and that there were no pedestrians on said roadway in front of appellee's automobile, but he did see some men on the south side of the roadway, but never saw them on the roadway before the accident.

There was some evidence that appellee, as she was driving her automobile east on the roadway was blinded by the sun, and, as her vision was obscured, she failed to see appellant until it was too late to stop. The appellee admitted that the sun did have a tendency to obscure her vision, but to obviate the glare of the sun, she shielded her eyes with her hand, and that she could see the traffic on the road, but did not see appellant until he was right in front of her car.

The above, in substance, was the evidence submitted to the jury to establish the allegations of negligence as alleged in appellant's amended complaint.

Appellant complains that the trial court erred in giving to the jury appellee's instruction number seven, as parts of said instruction invades the province of the jury. The instruction reads as follows:

'Defendant's Instruction No. 7

'If you find from a preponderance of the evidence that plaintiff suddenly walked into the traveled part of the roadway in question and directly in the path of the defendant's automobile, and if you also find by a preponderance of the evidence that the defendant did not see the plaintiff or know of his presence at such point, and by the exercise of reasonable and ordinary care defendant could not have seen or known of plaintiff's presence at said point in sufficient time, by the exercise of reasonable and ordinary care, to have avoided the collision with the plaintiff, then there was no duty on the part of the defendant to give an appropriate signal by horn or other device.'

One of the acts of negligence appellant alleged that appellee committed was: 'In failing to sound her horn as a warning to appellant'. It appears from the evidence that it was the theory of the appellee that appellant suddenly walked or appeared in front of appellee's automobile, and that she did not have time to stop or sound her horn before striking appellant.

It was the duty of the court to instruct the jury upon the appellee's theory of the case, and said instruction was a proper instruction on such theory. Acme-Evans Co. v. Schnepf, 1938, 105 Ind.App. 475, 15 N.E.2d 742; Acme-Evans Co. v. Schnepf, 1938, 214 Ind. 394, 14 N.E.2d 561.

Appellant further complains of instruction number seven on the ground that it conflicted with appellant's instruction number four, which instruction reads as follows:

'Plaintiff's Instruction No. 4

'Members of the Jury, plaintiff's complaint charges as an act of negligence, that the defendant, Jane Brackney Sisco, failed to sound her horn.

'If you find by a preponderance of the evidence that the defendant, Jane Brackney Sisco, did fail to sound her horn, as alleged in the plaintiff's complaint, and that such failure on the part of Jane Brackney Sisco was negligence and was the sole proximate cause of any injury complained of in the plaintiff's complaint, then your verdict should be for the plaintiff William Scott.'

Said instruction was based upon the alleged failure of appellee to sound her horn and the court merely instructed the jury that if they found that appellee did fail to sound her horn, and that such failure was negligence on the part of appellee, and the sole proximate cause of any injury, then their verdict should be for the plaintiff. Instruction number seven explained to the jury that if appellant suddenly walked into the path of appellee's car, and if, by the exercise of reasonable care, appellee could not have seen or known of appellant's presence in time to sound her horn, then her failure to sound her horn was not negligence.

Appellee's instruction number seven was in no way in conflict with appellant's instruction mumber four, but merely explanatory thereof as to what would, or would not constitute negligence on the part of the appellee if she failed to sound her horn.

Appellant also complains that the court erred in giving to the jury appellee's instruction number three, which instruction was based upon the Acts of 1939, ch. 48, § 146, p. 289, sub-section (b), § 47-2228, Burns' Ind.Stat., 1952 Replacement, subsection (b), which instruction reads as follows:

'Defendant's Instruction No. 3

'I instruct you, members of the jury, that there was in full force and effect at the time of this collision a statute in the State of Indiana reading, in part, as follows:

"Performance ability of brakes. Every motor vehicle or combination of motor-drawn vehicles shall be capable at all times and under all conditions of loading, of being stopped on a dry, smooth, level road, free from loose material, upon application of the service (foot) brake, within the distances specified below, or shall be...