Smith v. Diamond

• Decision Date: 24 June 1981
• Docket Number: No. 2-980A305,2-980A305
• Citation: 421 N.E.2d 1172,32 A.L.R.4th 43
• Parties: Dale F. SMITH, Appellant (Plaintiff Below), v. Aubrey A. DIAMOND, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 1172

421 N.E.2d 1172

32 A.L.R.4th 43

Dale F. SMITH, Appellant (Plaintiff Below), v. Aubrey A. DIAMOND, Appellee (Defendant Below).

No. 2-980A305.

Court of Appeals of Indiana, Fourth District.

June 24, 1981.

William E. Beck, II, Martin & Beck, Kokomo, for appellant (plaintiff below).

Eugene O. Maley, Dennis N. Owens, Smith, Maley & Douglas, Indianapolis, for appellee (defendant below).

MILLER, Judge.

Plaintiff Dale Smith, a 12-year-old boy who was struck and injured while crossing a street by a car driven by defendant-appellee Aubrey Diamond, appeals from a judgment on the evidence in favor of Diamond. We affirm in light of uncontradicted testimony establishing that Smith, who failed to look both ways for traffic before crossing the street, was contributorily negligent as a matter of law.

The facts most favorable to Smith are as follows: In April of 1979, about 5:30 p. m., Smith, who was 12 years and 9 months old and a student in the seventh grade, was walking from his home in the Modern Mobile Trailer Court to the "Gas Barn" across the street to buy milk for his family at his father's request. The trailer court was on the east side of North Washington Street apparently near the Kokomo city limits, and the "Gas Barn" was on the west side and to the south of the trailer court, about 400 to 500 yards away. At some point prior to leaving the premises of the trailer court, Smith met John Crane, Jr., an 11-year-old friend. The boys walked together out of the southernmost exit of the trailer court and proceeded south on North Washington. Although there was a gravel berm on either side of the street, there were no sidewalks, crosswalks, stop signs or stoplights near the accident scene. The road at that point narrows from four lanes south of the "Gas Barn" to two lanes, and there is a slight curve. When the boys reached the area of the entrance to the Riley Estates Trailer Park, which is located directly south of the Modern Mobile Trailer Court, Smith crossed the street to the west side, where the "Gas Barn" was located, after first waiting for traffic to pass. He was then north of a "Welcome to Kokomo" sign on the west side of the street.

John Crane, Jr. testified he remained on the east side of North Washington. By contrast, however, a witness parked at the "Gas Barn," Russell McCoy, stated he saw both boys on the west side of North Washington. According to Crane, Jr., he first noticed Smith crossing the street when the latter was halfway across, and he did not follow because of traffic.

The accident occurred when Smith attempted to go from the west side of North Washington back to the east side so that he could cross with Crane, Jr. He stated, "I was just wanting to cross with him, so I just went back over." Smith testified he had walked only a short distance on the west side, until he was south of the "Welcome to Kokomo" sign, before attempting to go back over. At that time, he looked to his left and saw a car, waited for it to pass, and then proceeded across the street without looking to his right for northbound traffic. In fact, according to Smith, he had stepped over into the northbound lane before he saw Mrs. Diamond's car.

Smith was struck in the right, or northbound, lane of traffic by a 1970 stationwagon driven by Diamond. She testified without contradiction she was traveling about 35 miles per hour in a zone which changes from 35 to 50 miles per hour shortly before the point of impact. According to Mrs. Diamond, she first saw both boys when she was about a block away, at which time they were standing directly across from each other in the gravel berm on either side of North Washington, south of the "Welcome to Kokomo" sign. Mrs. Diamond stated she slowed to about 30 miles per hour by taking her foot off the accelerator when she saw the boys. Although she also stated Crane, Jr. looked in her direction and moved back off the roadway three or four feet, Crane, Jr. himself testified "I looked to my left. I looked towards the Gas Barn and I didn't see no car." According to Mrs. Diamond, she resumed traveling at 35 miles per hour after the Crane boy moved off the roadway.

As Mrs. Diamond approached the boys' position her view of Smith was blocked by oncoming traffic in the southbound lane. She continued watching Crane, Jr. but did not sound her horn or give any other type of warning. Her next view of Smith was when she came "nose to nose" with the first of several approaching cars, at which time he appeared "on the center line" between two such vehicles about 200 feet apart, as he (Smith) was entering her lane of travel some five or six feet in front of her. ¹ Diamond said "I believe I swerved to the right," and immediately applied her brakes, but was unable to avoid striking Smith, who was dragged under the stationwagon. A police officer who arrived at the scene shortly thereafter stated he found the Diamond vehicle sitting in "a sort of northeasterly direction" near the entrance to the Riley Estates trailer court. Photographs of the car revealed the impact was slightly toward the driver's side of the car, almost at the center of the vehicle's hood. The witness, McCoy, stated the Diamond car traveled about one and one-half to two car lengths after hitting Smith before coming to a complete stop. ²

At the conclusion of all of the evidence, the trial court determined, pursuant to Ind.Rules of Procedure, Trial Rule 50, "the evidence considered most favorably to the Plaintiff fails to prove a prima facie case and is insufficient to support a verdict for the Plaintiff." The sole question presented by Smith for our review is whether the trial court acted erroneously in taking the case from the jury.

Trial Rule 50 provides, in part:

"Where all or some of the issues in a case tried before a jury or an advisory jury are not supported by sufficient evidence or a verdict therein is clearly erroneous as contrary to the evidence because the evidence is insufficient to support it, the court shall withdraw such issues from the jury and enter judgment thereon or shall enter judgment thereon notwithstanding a verdict."

This Court has held a judgment on the evidence for a defendant is proper only if the plaintiff fails to present evidence of probative value on one or more of the elements necessary to a recovery on the claim made, Koroniotis v. La Porte Transit, Inc. (1979) Ind.App., 397 N.E.2d 656, 659, citing Walters v. Kellam & Foley, (1977) 172 Ind.App. 207, 360 N.E.2d 199, and that a ruling on a motion for judgment on the evidence is limited to a consideration of the evidence and all reasonable inferences drawn therefrom most favorable to the party against whom the motion is made. Koroniotis v. La Porte Transit, Inc., supra at 659-60, citing Mamula v. Ford Motor Company, (1971) 150 Ind.App. 179, 275 N.E.2d 849.

In a negligence action, judgment on the evidence is appropriate where, based on undisputed facts, a plaintiff virtually admits his own negligence in bringing about the complained of injury, since in such a situation the plaintiff is contributorily negligent as a matter of law, although it may also appear there is some question regarding the defendant's alleged negligent acts. Carroll v. Ely, (1980) Ind.App., 398 N.E.2d 1364, Koroniotis v. La Porte Transit, Inc., supra. Contributory negligence is a complete defense, independent of any negligence of the defendant. Carroll v. Ely, supra at 1366, citing Chamberlain v. Deaconess Hospital, Inc., (1975) 163 Ind.App. 324, 329, 324 N.E.2d 172, 176.

Accordingly, the essential question in the instant action is whether Smith, who acknowledged his failure to look for northbound traffic, was contributorily negligent in crossing the street. If he was, this Court need not consider whether there is an inference, as Smith now alleges, that Diamond was negligent in her failure to sound her horn or further reduce her speed to avoid a collision.

The law pertaining to contributory negligence of children and minors and the standard of care to be applied to them has been the subject of much critical commentary and numerous appellate opinions of this jurisdiction and others. See generally Annot., Contributory Negligence of Children, 77 A.L.R.2d 918 (1961) and cases cited therein; Note, Contributory Negligence of Children in Indiana: Capacity and Standard of Care, 34 Ind.L.J. 511 (1959); and Wilderman, Presumptions Existing in Favor of the Infant in re: The Question of an Infant's Ability to be Guilty of Contributory Negligence, 10 Ind.L.J. 427 (1935). While the courts have taken a variety of approaches in addressing the question, often with the result that clear guidelines have proved elusive,

"there appears to be no doubt that 'children' are accorded special status in applying the normal rules of contributory negligence, and that this special status is normally justified on the ground that they have less capacity for self-care than an adult, and accordingly it would be improper or inequitable to hold them to the same standard."

Annot., Contributory Negligence of Children, supra at 919 (1961).

Thus, most courts would probably agree, for example, there is an age at which no child can rationally be charged with any appreciable duty of self-care, and an age at the other end of the scale, at which minors will typically be held to an adult standard of care. Id. at 920. Frequently, the decisions in this area have discussed not only the standard of care to be applied to the acts of children, but also the threshold question of whether children or infants of a particular age have the capacity to be capable of negligence under any circumstances. As a result, three distinct issues often emerge: (1) the existence of any capacity for contributory negligence; (2) assuming some capacity but not an adult capacity, the standard of care to be applied; and (3) whether the particular plaintiff's actual conduct measured up to the requisite standard. Id.

In jurisdictions adopting...