Sheridan v. Siuda

• Decision Date: 27 December 1971
• Docket Number: No. 1,No. 870A132,870A132,1
• Citation: 276 N.E.2d 883,150 Ind.App. 395
• Parties: William J. SHERIDAN, Appellant, (Plaintiff-below), v. Alfred J. SIUDA and Edward L. Siuda, Appellees, (Defendants-below)
• Court: Indiana Appellate Court

Page 883

276 N.E.2d 883

150 Ind.App. 395

William J. SHERIDAN, Appellant, (Plaintiff-below), v. Alfred J. SIUDA and Edward L. Siuda, Appellees, (Defendants-below).

No. 870A132.

Appellate Court of Indiana, Division No. 1.

Dec. 27, 1971.

Roland Obenchain, South Bend, for appellant.

Arthur Allan Keppen, Michigan City, Jack Murray, Knox, for appellees.

BUCHANAN, Judge.

STATEMENT OF THE CASE AND FACTS--This is an appeal from a negative verdict rendered against plaintiff-appellant William J. Sheridan (Sheridan) in an action against defendants-appellees Alfred J. and Edward L. Siuda (Siuda) for the death of his daughter, a non sui juris minor, pursuant to IC 1971, 34--1--1--8, Ind.Ann.Stat. § 2--217 (Burns 1967).

The complaint was originally filed in LaPorte County and was later venued to the Starke Circuit Court. The cause was tried by a jury, which returned a verdict for the defendants.

These are the facts most favorable to Siuda:

On August 22, 1966, Lake Shore Drive and Hazeltine were paved public thoroughfares which intersected at right angles in the Town of Long Beach, Indiana. At 7:30 P.M., as the sun was setting in the west, Siuda was operating a large Ford truck to which was attached a low-boy trailer carrying a Caterpillar tractor. He was proceeding west on Lake Shore Drive through the Hazeltine intersection. It was a clear day and the streets were dry. There were signs at regular intervals on Lake Shore Drive warning motorists that children were at play everywhere. The streets themselves were narrow and congested, and there was no sidewalk provided for pedestrians either along Lake Shore Drive or Hazeltine Drive.

The truck was driven by Alfred J. Siuda, and as he approached the intersection he looked to his left and noticed a child in a stroller careening down the hill towards the truck. Siuda turned the truck sharply to the right in order to avoid the child; however, he was unsuccessful in this attempt and the child, Mary Florence Sheridan, age 6, struck the trailer and subsequently died.

At the time of the accident, the deceased child had been left by her parents in the custody of her 18-year-old brother, William, Jr., who was walking on the beach when the child was injured.

An examination of the scene indicated no brake marks made by the truck; however, further examination showed sand on the road and under these circumstances tire marks might not be visible on the road.

It is undisputed that the speed limit along Lake Shore Drive was twenty-five miles an hour, and it is further undisputed that Siuda was traveling at a rate between twenty and twenty-five miles an hour.

The evidence indicates that Hazeltine Drive is lined with a hedge and two columns at the end of the street where it intersects Lake Shore Drive. This condition made observance of traffic coming off of Hazeltine onto Lake Shore difficult.

During the course of the trial, Sheridan offered into evidence, without objection, Exhibit 11, which consisted of an ordinance of the Town of Long Beach, together with proof of publication.

The ordinance reads in part as follows:

'Be it Ordained, by the Board of Trustees of the Town of Long Beach, Indiana, that it shall be unlawful . . . to . . . drive . . . any . . . vehicle . . ., the gross weight of which, . . . is in excess of four and one-half tons, on . . . Lake Shore Drive.'

Sheridan requested his instruction No. 8, which the Court refused. It consisted of the ordinance relating to gross weight of vehicles and added this paragraph:

'If you find from a preponderance of the evidence that the defendants violated the ordinance on the occasion in question and that the violation was without excuse or justification such conduct would constitute negligence on the part of the defendants.'

Siuda's vehicle weighed more than four and one-half tons.

Prior to giving instructions, Sheridan moved to withdraw the issue of contributory negligence from consideration by the jury. The trial court overruled this motion.

During the final argument Siuda's attorney read to the jury an article entitled, 'Who Is Responsible?' which appeared in the local newspaper, The Long Beacher. This bit of journalism sounded a warning note to parents, placing responsibility on them for endangering their children by allowing them to use the streets as a playground. Such phrases were used as, 'The new game of Russian Roulette played by youngsters', 'streets are used as playgrounds', 'Streets in Long Beach are for automobiles . . . not playgrounds' and 'Taking turns riding down hills across the line of traffic is a popular pastime'.

After most of the article had been read to the jury, the attorneys for Sheridan objected. The court's reply was as follows: 'I think I'll take the position you may not read it, but you can go on with argument.'

Counsel for Sheridan then moved for an order instructing the jury to entirely disregard the reading of the excerpts from The Long Beacher or in the alternative to withdraw submission of the cause and declare a mistrial, and gave reasons for the motion.

The court replied: 'Overruled on the grounds it's within proper argument.'

At the close of final arguments, and prior to the reading of the instructions, the court made the following statement:

'Ladies and gentlemen, there have been objections by counsel on both sides during the final argument. You should not hold this against either side. Also, the things said by lawyers during the final arguments are not to be considered as evidence by you.' (Even though both sides allude to this quotation by the court, it is not to be found in the Record.)

Over objection, the Court gave final instruction No. 7, as follows:

'The negligence, if any, of the 18-year-old son William Sheridan, is chargeable to the parents and if such negligence proximately contributed to the injury and death, then in that event there can be no recovery against the defendants.'

Sheridan objected to final instruction No. 11, as follows:

'If the defendant, Alfred Siuda, was placed in a position of great peril and sudden emergency thru no fault of his own, where immediate action is necessary, and where defendant was compelled to make a choice between hazards, he is not required to exercise all of the presence of mind and carefulness that are justly required of a careful and prudent man under ordinary circumstances, who has time to deliberate; and the reasonableness of his effort to avoid harm to the deceased after discovery of the danger, is a question for the jury to determine under all the circumstances of the case.'

Also, objected to by Sheridan was final instruction No. 12:

'I instruct you that the happening of an accident even though accompanied by proof that plaintiff's decedent was a non sui juris minor does not raise a presumption of negligence on the part of the defendant. Negligence on the part of the defendant must be established before there can be a recovery by the plaintiff and such negligence as is charged in the complaint, must be established by the preponderance of the evidence before there can be a recovery. If there is a failure of proof in this regard, your verdict should be for the defendant.'

ISSUES--Sheridan's Motion to Correct Errors raises five issues:

Issue One. Was Sheridan denied a fair trial because of improper final argument and the failure of the trial court to specifically admonish the jury with respect thereto or declare a mistrial.

Issue Two. Was it error to refuse Sheridan's instruction No. 8, which informed the jury of the effect of a violation of the town ordinance concerning overweight vehicles, which ordinance had been admitted into evidence without objection?

Issue Three. Was there sufficient evidence of contributory negligence on the part of Sheridan's eighteen-year-old son to support final instruction No. 7, which imputed his negligence to the parent as a matter of law?

Issue Four. Does final instruction No. 11, wrongfully instruct the jury that Siuda had no duty towards Mary Sheridan until such time as great peril and sudden emergency arose?

Issue Five. Does final instruction No. 12 violate the meaning, theory, and intent of the Indiana Rules of Procedure?

As to Issue One, Sheridan asserts that the introduction of the newspaper article during final argument by Siuda's counsel was prejudicial and inflammatory and constituted misconduct of counsel. Following his timely objection to the reading of the newspaper article, the trial court should have specifically instructed the jury to disregard any statements concerning the article or declare a mistrial.

In this connection Siuda contends that the trial court did instruct the jury, following final argument, that 'things said by lawyers during the final arguments are not to be considered as evidence by you' and this statement was adequate to cover any error committed during final argument. Even if not adequate, Sheridan waived any rights he may have had to object by delaying his objection until the article was almost completely read.

As to Issue Two, it is Sheridan's contention that the refusal to give his instruction No. 8 was error as the ordinance was admitted into evidence without objection and the facts clearly indicated that Siuda had violated the ordinance because the truck and trailer exceeded the weight limit. It is this violation, Sheridan argues, which bore directly upon Siuda's duties with respect to look-out, control and speed, particularly 'in view of the congested nature of the area.' The implication is the violation of this ordinance was the proximate cause of the injury.

Siuda argues, however, that the court properly refused this instruction, as any purported violation of the ordinance was not shown by the evidence to have been the proximate cause of the death of Sheridan's daughter.

As to Issue Three, Sheridan argues that final instruction No. 7, should not have been given because (1) there was no evidence of negligence on the part of William, Jr.; (2)...