Smith v. Beaty

• Decision Date: 29 August 1994
• Docket Number: No. 47A01-9312-CV-415,47A01-9312-CV-415
• Citation: 639 N.E.2d 1029
• Parties: Larry J. SMITH, Appellant-Plaintiff, v. Charles C. BEATY and Peake, Inc., Appellees-Defendants.
• Court: Indiana Appellate Court

Page 1029

639 N.E.2d 1029

Larry J. SMITH, Appellant-Plaintiff, v. Charles C. BEATY and Peake, Inc., Appellees-Defendants.

No. 47A01-9312-CV-415.

Court of Appeals of Indiana First District.

Aug. 29, 1994.

Brad Bough, Modesitt & Bough, Terre Haute, for appellant.

Kevin C. Schiferl, Nelson D. Alexander, Locke Reynolds Boyd & Weisell, Indianapolis, for appellees.

NAJAM, Judge.

STATEMENT OF THE CASE

Larry J. Smith appeals from the trial court's ruling on a motion for judgment on the evidence in his negligence action against Charles C. Beaty and Peake, Inc. (collectively "Beaty"). Smith's action arose out of a collision between a semi-tractor trailer, operated by Beaty in the course and scope of his employment with Peake, and a United Parcel Service van, operated by Smith. Beaty moved for judgment on the evidence at the conclusion of Smith's case-in-chief in a jury trial. The trial court granted the motion, dismissed the jury and entered a general judgment against Smith. Smith appeals and Beaty cross-appeals. ¹ Both raise the following issue for our review:

Whether the trial court properly granted Beaty's motion for judgment on the evidence.

We reverse and remand.

FACTS

At approximately 4:30 a.m. on July 3, 1990, Larry Smith was driving a United Parcel Service van on State Road 60 in Lawrence County when one of the tires on the right side of his van blew out. State Road 60 has two lanes and is relatively flat at this location. As the tire burst, the van veered off the right side of the roadway. Smith slowed the vehicle and attempted to return it to the roadway but the van rolled over twice. It came to rest upside down in the eastbound lane of traffic with the nose of the van pointed in a northeasterly direction.

Subsequently, Marti Wells ² approached in her vehicle and stopped at the accident scene. Smith asked Wells for help and told her that he could not get out of the van. Because the van was upside down, Smith was trapped in the driver's seat by his lap belt and shoulder harness which would not release due to his weight hanging from the seat. Wells moved her vehicle behind Smith's van and parked it facing west in the middle of the road.

As Wells stepped out of her truck to help Smith, a semi-tractor trailer approached from the west on State Road 60. The semi was driven by Charles Beaty, who was employed by Peake, Inc. Beaty attempted to avoid Smith's van by swerving into the other lane, but the semi collided with Smith's van and then with Wells' truck. The van spun and twisted before it came to rest on its side. The impact from the collision caused Smith to slip farther down into the driver's seat and enabled him to put his feet on the passenger side door and to extricate himself from his seatbelt. Smith climbed out of the van through the windshield and found Wells lying in the roadway.

Meanwhile, Leon Williams had heard Smith's van crash from his home, which was located approximately 150 to 175 feet from the point where Smith's vehicle came to rest. Williams walked approximately 75 feet toward Smith's van so that he could look over an embankment at the vehicle below. He began to return home to call an ambulance when he heard Beaty's semi approaching. Williams then witnessed the collision between Beaty's semi and Smith's van.

Smith was hospitalized for three days and treated for five fractured ribs. As a result of his rib injuries, Smith suffers from a condition known as pseudo-arthrosis which continues to limit his physical activities. We will state additional facts in our discussion as needed.

DISCUSSION AND DECISION

Standard of Review

In reviewing a trial court's ruling on a motion for judgment on the evidence, we apply the same standard as the trial court and look only to the evidence and reasonable inferences most favorable to the non-moving party. Clark v. Wiegand (1993), Ind., 617 N.E.2d 916, 918. When the defendant moves for judgment on the evidence at the close of the plaintiff's evidence in a jury trial, the motion should be granted only where an issue in the case or an essential element of the claim is not supported by sufficient evidence. See Ind.Trial Rule 50(A); Daub v. Daub (1994), Ind.App., 629 N.E.2d 873, 877, trans. denied. Put another way, the court should withdraw the issues from the jury only if there is a complete failure of proof on at least one essential element of the plaintiff's case. Johnson v. Naugle (1990), Ind.App., 557 N.E.2d 1339, 1342. If there is any probative evidence or reasonable inferences to be drawn from the evidence or if there is evidence allowing reasonable people to differ as to the result, judgment on the evidence is improper. Van Bree v. Harrison County (1992), Ind.App., 584 N.E.2d 1114, 1116, trans. denied.

Negligence

Smith contends that the trial court erred when it granted Beaty's motion for judgment on the evidence because he presented enough evidence on each element of his negligence claim to allow the case to proceed to the jury. The tort of negligence is comprised of three elements: 1) a duty on the part of the defendant in relation to the plaintiff; 2) a failure by the defendant to conform its conduct to the requisite standard of care; and 3) an injury to the plaintiff proximately caused by the failure. Fawley v. Martin's Supermarkets, Inc. (1993), Ind.App., 618 N.E.2d 10, 12, trans. denied. Applying the above-stated standard of review, we must look to the evidence most favorable to Smith and determine whether there is evidence of probative value, or reasonable inferences to be drawn from that evidence, on each element of Smith's negligence claim.

A. Duty

The parties do not dispute that, as a motorist, Beaty owed Smith a duty to maintain a proper lookout, to use due care to avoid a collision and to maintain his semi under reasonable control. See Schultz v. Hodus (1989), Ind.App., 535 N.E.2d 1235, 1238, trans. denied. There was sufficient evidence that Beaty owed Smith a duty.

B. Breach of Duty

Beaty disputes whether he breached the duty he owed Smith. Beaty maintains that Smith failed to produce sufficient evidence that he breached the requisite standard of care because Smith introduced no evidence that Beaty failed to maintain a proper lookout or did not use due care to avoid a collision and maintain his semi under reasonable control. Smith, however, asserts that he presented sufficient evidence "to allow a reasonable fact finder to differ as to whether the care exercised by the defendants with respect to speed and the visibility of objects on the road was reasonable." Brief of Appellant at 15.

The evidence most favorable to Smith reveals that the accident occurred in the early morning at approximately 4:30 a.m. when the sky was not completely light, but was described as a "gray dawn" or "predawn." Record at 396 and 689. After Smith lost control of his vehicle and his van rolled over, it came to rest upside down, with its nose partially obstructing the eastbound lane of State Road 60. On that particular stretch of road, the westbound lane of the road comes out of a curve into a straightaway approximately four-tenths of a mile long before the road curves again. Smith's van was located in the straightaway between the two curves.

Smith testified that one of his vehicle's headlights was still operating and was shining into the trees on the hill north of the roadway. Leon Williams testified that Smith's vehicle could be seen without difficulty in the roadway, and he and Smith both stated that at least two westbound vehicles passed the accident scene before Beaty's semi arrived. Further, Wells testified that after she arrived on the scene, she parked her truck in the center of the roadway and positioned it behind Smith's van so that one of her headlights shone down the roadway to the west and the other shone onto Smith's van. Wells also activated the emergency flashers on her truck. Wells saw nothing in the roadway that would block or obstruct the view of her truck from vehicles proceeding in an easterly direction.

Finally, Williams testified that he observed Beaty's semi-tractor trailer as it approached the accident scene eastbound on State Road 60. Williams stated it appeared that Beaty was looking down into his outside rearview mirror as he approached the scene and that, a few seconds before the impact, Beaty looked up and swerved the semi into the other lane.

A motorist upon a highway regularly used by the public is not required to anticipate extraordinary hazards, nor to constantly expect and search for unusual dangers. Opple v. Ray (1935), 208 Ind. 450, 459, 195 N.E. 81, 84. However, a motorist is charged with the duty of exercising ordinary care to observe dangers and obstructions and is chargeable with notice of obstructions that a person of ordinary prudence would reasonably be expected to observe. Id. To that end, keeping a proper lookout has been defined to mean the duty to see that which is clearly visible or that which in the exercise of due care would be visible. Thornton v. Pender (1978), 268 Ind. 540, 544, 377 N.E.2d 613, 617. Generally, whether under the facts of a case a driver complied with the standard of ordinary care to keep a lookout for objects in the road is a question for the jury. See id.; Cushman Motor Delivery Co. v. McCabe (1941), 219 Ind. 156, 170, 36 N.E.2d 769, 774; Bd. of Comm'rs v. Briggs (1975), 167 Ind.App. 96, 134, 337 N.E.2d 852, 875.

Here, Smith presented evidence that the sky was not completely dark and that the accident scene was clearly visible. Witnesses testified that Smith's vehicle could be seen without difficulty in the roadway, at least one of Wells' headlights was pointed down the roadway to the west, Wells' flashers were operating and at least two other vehicles passed by the scene without difficulty. There was also testimony that Beaty was looking down into his rearview mirror and only looked up a few seconds before the impact. Thus, a question of fact exists concerning whether...