Southern Ind. Gas & Elec. Co. v. Bone

• Decision Date: 26 February 1962
• Docket Number: No. 19416,No. 2,19416,2
• Citation: 135 Ind.App. 531,180 N.E.2d 375
• Parties: SOUTHERN INDIANA GAS AND ELECTRIC COMPANY, Arthur V. Price, Appellants, v. Charlotte BONE, Appellee
• Court: Indiana Appellate Court

Page 375

180 N.E.2d 375

135 Ind.App. 531

SOUTHERN INDIANA GAS AND ELECTRIC COMPANY, Arthur V. Price, Appellants, v. Charlotte BONE, Appellee.

No. 19416.

Appellate Court of Indiana, Division No. 2.

Feb. 26, 1962.

Rehearing Denied March 28, 1962.

Bamberger, Foreman, Oswald & Hahn, Evansville, for appellants.

Johnson & Carroll, Evansville, for appellee.

PFAFF, Judge.

Appellee brought this action against appellants to recover damages for personal injuries allegedly sustained by appellee as a result of a collision between the truck in which she was riding as a guest and a truck owned by appellant, Southern Indiana Gas and Electric Company, operated by its agent, appellant Arthur V. Price.

Appellee's complaint, as amended, alleged that she was riding as a non-paying passenger in a 1956 G.M.C. pickup one-half ton truck owned and operated by her husband, Lemuel Bone, who was driving west on Indiana State Highway No. 62, approximately one and one-quarter miles west of the city limits of Evansville; that at the same time and place the appellant, Arthur V. Price, was operating a Southern Indiana Gas and Electric Company truck as an agent for said company and, while within the scope of his employment, in the same direction in which the truck, in which appellee was a passenger, was proceeding and immediately to the rear thereof; that the appellant, Arthur V. Price, approaching the truck, in which appellee was a passenger, at a rate of speed greater than appellee's speed struck the rear of the truck. The complaint, as amended, alleges that the appellant, Arthur V. Price, was guilty of certain acts of negligence in failing to look in the direction in which he was proceeding; in failing to observe the vehicle in which appellee was riding; in failing to apply his brakes in sufficient time to avoid striking the vehicle in which appellee was riding; in following the vehicle too closely; and in failing to turn the truck which he was operating either to the right or to the left to avoid striking appellee. As a result thereof, said appellee suffered serious permanent injuries to her damage in the sum of $50,000.00.

The appellants filed their answer expressly denying the charges of negligence contained in the complaint and the facts alleged with respect thereto. The cause was tried to a jury and appellee was awarded damages in the sum of $14,500.00. Appellants timely filed their motion for a new trial which motion was overruled by the trial court. The error assigned here is the overruling of the motion for a new trial.

Appellants' motion for a new trial presents many varied and alleged erroneous rulings of the trial court and sets out eighty-five specifications of alleged error, taking up in excess of thirty pages of single spaced type in their brief. However, they have waived most of them by failing to discuss them in the argument portion of their brief. We proceed to a consideration of those specifications properly presented here.

Appellants first contend, in their specification No. 73, that the trial court erred in giving appellee's tendered instruction No. 3. (This instruction will be hereinafter set out in full.) Appellants further contend that this is a mandatory instruction which imposes the obligation on the part of one who operates a motor vehicle on a public highway to observe the highway in front of him so as to discover other vehicles thereon and avoid colliding therewith and to keep his vehicle under such control that he may readily operate or stop the same to avoid a collision and possible injury to other persons.

It is further contended that it is not the law in Indiana that a person is bound to see what he could have seen if he had exercised due care under the circumstances, unless a reasonably careful and prudent person under the circumstances could have seen or observed the truck in which the appellee was a passenger.

It is then contended this instruction was erroneous for the reason that no issue was presented with respect to the failure of appellant, Arthur V. Price, to keep his vehicle under control and, therefore, such instruction is outside the issues presented by the complaint, and the giving thereof is error as a matter of law. It is then charged that this instruction is mandatory in authorizing the jury to find that the appellant, Arthur V. Price, was guilty of actionable negligence, and that appellee should be entitled to recover without informing the jury that such negligence must be the proximate cause of the collision.

Appellee contends, and we agree, that her instruction No. 3 is an exact duplicate almost word for word of the instruction in the case of McClure v. Miller (1951), 229 Ind. 422, at page 432, 98 N.E.2d 498. We set these instructions out side by side as follows:

APPELLEE'S INSTRUCTION

'The Court instructs you that one who operates a motor vehicle upon a public highway is bound to observe the highway in front of him so as to discover other vehicles thereon, and avoid colliding therewith, and to keep his vehicle under such control that he may readily operate or stop the same to avoid a collision and possible injury to other persons. He is bound to see what he could have seen if he had exercised due care under the circumstances, and if in this case you find that the defendant Arthur V. Price could have seen the truck in which plaintiff was a passenger in time to have so operated his truck or stopped the same in time to have avoided a collision with the truck in which plaintiff was a passenger, by the exercise of due care and caution required by the particular circumstances, and if you also find that the defendant Arthur V. Price did so collide with the truck in which plaintiff was a passenger, you may find the defendant Arthur V. Price was negligent in so operating his motor vehicle as to cause such collision, and if the plaintiff Charlotte Bone is not guilty of contributory negligence, your verdict should be for the plaintiff, providing that the negligent acts of Arthur V. Price, if you find he was negligent, was the proximate cause of the accident.'

McCLURE INSTRUCTION

'One who operates an automobile upon a public highway is bound to observe the highway in front of him so as to discover other other vehicles or pedestrians thereon, and avoid colliding therewith, and to keep his automobile under such control that he may readily operate or stop the same to avoid a collision and possible injury to other persons. He is bound to see what he could have seen if he had exercised due care under the circumstances and if in this case you find that the defendant could have seen the plaintiff with whom he collided in time to have so operated his automobile or to have stopped the same in time to have avoided a collision with the plaintiff by the exercise of due care and caution required by the particular circumstances, and you also find that he did so collide with the plaintiff, then he was negligent in so operating his automobile as to cause such collision, and the plaintiff was not guilty of contributory negligence, your verdict should be for the plaintiff.'

The allegations of negligence in the McClure case did not contain a general allegation of a failure to keep the automobile under control, and the Supreme Court held such an instruction was within the issues and the evidence. We are of the opinion that the decision is not only a binding precedent on this court on this question but that it is a correct and just statement of the law applicable to the question here considered. We do not believe it would serve any good purpose to prolong this opinion by an analysis of inapplicable authorities cited by appellants in support of their contention. The trial court did not err in giving appellee's instruction No. 3.

Appellants next contend that the trial court erred in giving appellee's tendered instruction No. 1. This instruction reads as follows:

'You are instructed that in determining whether or not the plaintiff Charlotte Bone was guilty of contributory negligence, you shall consider her own acts and conduct, and all the other circumstances surrounding the accident and injury, if any, to the plaintiff. And if you shall find from a preponderance of the evidence in this cause that the plaintiff Charlotte Bone acted as a person of ordinary prudence under all the circumstances, you should find her free from contributory negligence, even though you may find that her husband was guilty of negligence in the operation of his truck. In other words, the negligence, if any, of the husband in the driving and management of said truck can not be imputed to the plaintiff Charlotte Bone if you find that she herself was free from any fault or negligence and was merely the passive guest of her husband without any authority to direct or control the operation of said vehicle.'

They contend that the question of whether or not the appellee, Charlotte Bone, was guilty of contributory negligence is to be determined by the acts or conduct of a reasonably careful and prudent person acting under the same or similar circumstances. They also assert that this instruction is erroneous because it informs the jury that, if appellee was free from negligence, the negligence, if any, of her husband would not be imputed to her. Finally, they say it is erroneous because if the evidence discloses the negligence of the husband was imputable to her, the fact that she was free from fault or negligence would not avoid the effects or prevent such negligence of the husband from being imputed to her.

Appellants had the burden of proving the defense of contributory negligence. In their argument on this question there is no reference to any evidence in the record from which it could be found, or reasonably inferred, that appellee had any right to or did in any way control the operation of this vehicle in which she was riding.

The trial court gave appellants' instruction No. 9 which reads as follows:

'I instruct you that...