Snow v. Sutton

• Decision Date: 21 December 1960
• Docket Number: No. 30043,30043
• Citation: 170 N.E.2d 816,241 Ind. 364
• Parties: Mabel SNOW, Appellant, v. James H. SUTTON, Appellee.
• Court: Indiana Supreme Court

Page 816

170 N.E.2d 816

241 Ind. 364

Mabel SNOW, Appellant, v. James H. SUTTON, Appellee.

No. 30043.

Supreme Court of Indiana.

Dec. 21, 1960.

Rehearing Denied Feb. 24, 1961.

James P. Savage, Clinton, Jack H. Mankin, Terre Haute, for appellant.

Zell & Zell, Clinton, Gambill, Cox, Zwerner & Gambill, Terre Haute, for appellee.

LANDIS, Judge.

Appellant brought action ¹ for personal injuries against appellee growing out of an automobile collision in which appellant was a passenger in an automobile driven by her husband and appellee was the operator of another automobile.

According to appellant's complaint she was riding in a southerly direction in her husband's car on US 41 approximately 200 feet behind another sough-bound car driven by appellee; that appellee carelessly and negligently operated his motor vehicle and thereby collided with a north-bound truck driven by a third party named Holdaway, causing said truck to careen across the center of said highway into the automobile in which appellant was riding, with great force and violence. The complaint charges four acts of negligence, via.: that appellee negligently drove his automobile to and upon the side of the highway which was to his left; that appellee negligently failed to keep his automobile under control so that it could be driven to his right, or generally to the west of said Holdaway truck; that appellee negligently failed to keep a lookout for other persons or automobiles properly using said highway, including said Holdaway truck; and that appellee negligently failed to apply his brakes in time to avoid striking the Holdaway truck.

That as a result of said negligence appellant was thrown against parts of the car in which she was riding causing serious injuries, to-wit: the loss of sight of appellant's right eye, a fractured right leg, lacerations and bruises. Wherefore appellant prayed judgment for $100,000.

Appellee filed answer to the complaint in effect denying the allegations thereof, and a trial was had by jury resulting in a verdict for appellee. Appeal is from the judgment.

Among the alleged errors urged as a result of the overruling of appellant's motion for new trial is the giving by the court of appellee's tendered Instruction No. 32, which was as follows:

'If you find, members of the jury, by a preponderance of the evidence that at the time the truck of Woodford B. Holdaway struck the Sutton car that said Sutton car was to the right of the center of the highway and on its own side of the road, and you further find that said collision was the sole proximate cause of plaintiff's injuries and damages, then I instruct you the plaintiff cannot recover against defendant Sutton.'

Appellant filed the following written objections to the giving of said instruction:

'The plaintiff objects to the Court giving to the jury defendant's instruction Number 32 for each of the following reasons: This instruction is highly prejudicial for many reasons, perhaps the most apparent of which is that it is a completely erroneous statement of the law. When it is considered with defendant's instruction Number 13, which was also given to the jury, it is apparent that the jury has been instructed in a mandatory instruction that a certain condition brought about by the conduct of Holdaway, namely, crossing the center of the highway, constitutes negligence, when in fact such conduct certainly is not negligence per se. It repeats defendant's instruction Number 13 and, like it, excludes the possibility of concurrent negligence by Holdaway and the defendant. It invades the province of the jury by instructing it that the mere fact that the collision...