Southern Indiana Gas and Elec. Co. v. Bone

• Decision Date: 22 January 1964
• Docket Number: No. 19416,19416
• Citation: 244 Ind. 672,195 N.E.2d 488
• Parties: SOUTHERN INDIANA GAS AND ELECTRIC COMPANY, Arthur V. Price, Appellants, v. Charlotte BONE, Appellee.
• Court: Indiana Supreme Court

Page 488

195 N.E.2d 488

244 Ind. 672

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

No. 19416.

Supreme Court of Indiana.

Jan. 22, 1964.

Appeal from Circuit Court, Posey County.

Dissenting opinion.

For majority opinion see 180 N.E.2d 375.

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

Johnson & Carroll, Evansville, for appellee.

ACHOR, Judge (dissenting).

I recommend transfer of the above captioned case.

The Appellate Court opinion approves appellee's [plaintiff's] instruction No. 3, which is as follows:

'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 boun is 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 act of Arthur V. Price, if you find he was negligent, was the proximate cause of the accident.' [My emphasis.]

The instruction is an amplification of a similar instruction which was approved, in the case of McClure v. Miller (1951), 229 Ind. 422, at page 432, 98 N.E.2d 498.

Notwithstanding our approval of the instruction in the McClure case, I am of the opinion that the italicized part of the instruction imposes an absolute, and therefore illegal, responsibility upon one who operates a motor vehicle upon a public highway to avoid collision or possible injury to other persons operating motor vehicles upon the public highway, regardless of the negligence on the part of the driver of the other vehicle....