Smith v. Cook, 2--775A182

• Decision Date: 06 April 1977
• Docket Number: No. 2--775A182,2--775A182
• Citation: 172 Ind.App. 610,361 N.E.2d 197
• Parties: Phyllis A. SMITH, Plaintiff-Appellant, v. Keith E. COOK et al., Defendants-Appellees. . 1
• Court: Indiana Appellate Court

Page 197

361 N.E.2d 197

172 Ind.App. 610

Phyllis A. SMITH, Plaintiff-Appellant, v. Keith E. COOK et al., Defendants-Appellees.

No. 2--775A182.

Court of Appeals of Indiana, First District. ¹

April 6, 1977.

W. Richard Herron, Elkhart, for appellant.

J. Conrad Maugans, Kokomo, Russell T. Keigh, Peru, John T. Hume, III, Theo. L. Sendak, Atty. Gen., K. Richard Payne, Mark A. Yegerlehner, Deputy Attys. Gen., Indianapolis, for appellee; Keith, Berkshire & Keith, Peru, Smith & Jones, Indianapolis, of counsel.

ROBERTSON, Chief Judge.

The trial court in a trial on an action for negligence, granted an Ind. Rules of Procedure, Trial Rule 50 (TR. 50) motion for judgment on the evidence and ordered the jury to return a verdict for two defendants-appellees, McMahan-O'Conner Construction Company (McMahan-O'Conner) and the State of Indiana (State). From the granting of that motion and the order, plaintiff-appellant, Phyllis A. Smith (Smith) brings this appeal.

This cause of action arose out of an automobile collision, the circumstances of which are as follows. U.S. 31, a norty-south highway, was, on August 15, 1971, in the process of being converted to a four lane divided highway. The west two (southbound) lanes were being used to conduct both northbound and southbound traffic until the reconstruction of the east two (northbound) lanes was completed.

On this date, the other defendant-appellee, Keith E. Cook (Cook), was proceeding east on SR. 18 toward its intersection with U.S. 31. Cook testified that at the intersection he observed automobiles approaching from the south but, being unaware that the east lanes of U.S. 31 were closed, assumed they were traveling in the east lanes. He then attempted to cross the west lanes to reach the haven in the median crossover. As he entered the west lanes, the northbound auto in which Smith was a passenger was unable to avoid the Cook auto and collided with it, resulting in injuries to Smith.

Smith brought an action for negligence against Cook whereupon Cook joined McMahan-O'Conner and State as defendants under Ind. Rules of Procedure, Trial Rule 20 and filed a cross-claim against the latter two parties. Smith filed an amended complaint also alleging negligence on the part of McMahan-O'Conner and State.

At trial, Smith asserted that McMahan-O'Conner and State had negligently failed to mark the intersection and approaches thereto in a manner sufficient to warn motorists that U.S. 31 was under construction and that the west lanes of that highway were being used for two-way traffic. This, it was alleged, was in non-compliance with the Indiana Manual on Uniform Traffic Control Devices for Streets and Highways (Manual) adopted for use in Indiana by IC 1971, 9--4--2--1, (Burns Code Ed.). It was further alleged that such failure misled Cook as to the nature of the use U.S. 31 and that the combined negligence of the three defendants-appellees constituted the proximate cause of Smith's injuries.

Specifically, it is alleged that there was not errected a 'Type A' barricade on U.S. 31 at the intersection with S.R. 18, that there was no ROAD CLOSED sign on U.S. 31 at the intersection, that there were no TWO-WAY TRAFFIC signs at the intersection, and that there were no signs on S.R. 18 warning of possible obstruction or restrictions due to highway construction. Smith characterizes these omissions as violations of the Manual and asserts that they constitute 'negligence per se.'

The standard for granting a defendant's motion for judgment on the evidence under TR. 50(A)(1) is that there must be a total absence of evidence or reasonable inference to be drawn therefrom on at least one essential element of the plaintiff's case. Mamula v. Ford Motor Company (1971), 150 Ind.App. 179, 275 N.E.2d 849.

Smith elected at trial to pursue her case under the theory of 'negligence per se' for the violation of a safety statute. ² Thus, the essential elements of Smith's case, as we perceive them from a distillation of case law, are:

1) The existence of a statute which imposes a specific duty on the part of or prohibits certain conduct by the defendant in relation to a class of persons of which the plaintiff is a member;

2) Violation of that statute by the defendant; and

3) An injury to the plaintiff proximately caused by that violation.

As there are questions of law to be decided by the trial court concerning the elements of the tort of negligence, ³ so there are questions of law to be decided by the trial court concerning the elements of statutory negligence before the case may be submitted to the jury.

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.

Second, the trial court must determine if 'the evidence introduced by the plaintiff at trial is sufficient as a matter of law to enable the jury to find that the plaintiff has established the elements of the cause of action'. Elliott v. State (1976), Ind.App., 342 N.E.2d 674.

It is clear that statutory negligence is not predicated upon any test for ordinary or reasonable care, but rather is founded in the defendant's violation of a specific requirement of law. Board of Commissioners of Miami County v. Klepinger (1971), 149 Ind.App. 377, 273 N.E.2d 109. The court, in the aforementioned opinion, quoted the following portion of Swoboda v. Brown (1935), 129 Ohio St. 512, 196 N.E. 274:

'The distinction between negligence and 'negligence per se' is the means and method of ascertainment. The first must be found by the jury from the facts, the conditions, and circumstances disclosed by the evidence; the latter is a violation of a specific requirement of law or ordinance; the only fact for determination by the jury being the commission or omission of the specific act inhibited or required.

Where a specific requirement is made by statute and an absolute duty thereby imposed, no inquiry is to be made whether the defendant acted as a reasonably prudent man, or was in the exercise of ordinary care. In such a situation, the obligation and requirement has been fixed and established by law, and the conduct of any person which is violative of such specific statutory requirement is illegal, and, if it proximately results in injury to one to whom a legal duty is owed, the transgressor is liable for the resulting damage. In such case, the jury is not called upon to determine whether the conduct constituted negligence; it determines only whether the act prohibited was committed or the act required by law was omitted, as the case may be. The violator of such specific requirement of law is liable, irrespective of the question as to whether his act is such as is deemed to meet and satisfy the test of ordinary or reasonable care which would be applied in the absence of such statutory definition and imposition of absolute duty, such as, for instance, the absolute and specific requirement as to headlights. Where the standard of duty is thus fixed and absolute, it becomes the same under all circumstances, the failure to observe that requirement is clearly negligence per se. But where duties are undefined, or defined only in abstract or general terms, leaving to the jury the ascertainment and determination or reasonableness and correctness of acts and conduct under the proven conditions and circumstances, the phrase 'negligence per se' has no application.'

In its scrutiny of the statute there in question, the court, in Board of...