Southern Indiana Gas and Elec. Co. v. Scoles, 1-1281A374

• Decision Date: 25 May 1982
• Docket Number: No. 1-1281A374,1-1281A374
• Citation: 435 N.E.2d 287
• Parties: 110 L.R.R.M. (BNA) 3047 SOUTHERN INDIANA GAS AND ELECTRIC COMPANY and John Clark, Defendants-Appellants, v. Merle S. SCOLES and Carolyn S. Scoles, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 287

435 N.E.2d 287

110 L.R.R.M. (BNA) 3047

SOUTHERN INDIANA GAS AND ELECTRIC COMPANY and John Clark Defendants-Appellants, v. Merle S. SCOLES and Carolyn S. Scoles, Plaintiffs-Appellees.

No. 1-1281A374.

Court of Appeals of Indiana, First District.

May 25, 1982.

Robert T. Bodkin, David J. Bodle, Bamberger, Foreman, Oswald & Hahn, Evansville, for defendants-appellants.

Rodney H. Grove, Grove, Miller & Krohn, Evansville, for plaintiffs-appellees.

NEAL, Judge.

Defendants-appellant Southern Indiana Gas and Electric Company and John Clark (SIGECO) appeal a judgment for personal injuries in favor of plaintiff-appellee Merle S. Scoles (Scoles) after a jury trial in the Gibson Circuit Court.

We affirm.

STATEMENT OF THE FACTS

The evidence most favorable to the judgment is as follows: On September 7, 1976, Scoles, age 51, an employee of SIGECO, was on picket duty in broad daylight on Darlington Road which led west to the strike-bound Culley and Warrick Power stations owned by SIGECO in Warrick County, Indiana. Accompanying him on picket duty were other employees of SIGECO, namely Richard Smith, Mike Norton, Tim Nohr, and John Brown. The Darlington Road is a narrow, 15 foot wide, rural, gravel road, along the south side of which the pickets had erected a canvas shelter. A court order fixing the ground rules for picketing permitted the pickets to stop all motor vehicles approaching the plants briefly and talk to the drivers to encourage them not to cross the picket line. The order also directed all plant personnel who were not on strike to make a courtesy stop at the picket line. The pickets were instructed by their union, upon the approach of a motor vehicle, to walk back and forth across the road with their sign, and cause the vehicle to stop.

On the date in question, John Clark, one of the supervisory personnel not on strike and who was conversant with the above outlined rules governing picketing, approached the picket line. He was traveling in a westerly direction in a company car and proceeded to brake his vehicle to a stop. Scoles, upon seeing Clark's approach, picked up his picket sign and commenced to walk back and forth across Darlington Road, and as he did so, he continued to watch Clark's automobile. Clark, noting that Scoles was in the road, continued to slow, but as he did so he pulled off the left side of the road and directed his vision to pickets on the left, or south side, of Darlington Road. Scoles, assuming Clark was stopping, started across the road from north to south, first looking to the west down the road for other traffic, and then, upon looking back, Clark's car struck him. Scoles was knocked backward, and down, catching himself with his right hand and arm. He was partially under the car when Clark stopped, but crawled out.

Scoles went over and sat down beside the edge of the road. A skinned place on his lower leg was bleeding, but he could walk, and in answer to Clark's question whether he was hurt, answered that he was. Clark then drove on and later reported the accident to proper company officials. Scoles drove to union headquarters in Evansville to seek directions on what doctor they desired him to attend for he had developed sharp pains in his back and leg, and his leg was getting numb. Upon discovering the absence of the business agent at the union hall, he went to his own doctor, Dr. Getty, who x-rayed him, gave him pain pills and muscle relaxants, and sent him home. Later, after tests and hospitalization by Dr. Getty and Dr. Mok, Scoles was hospitalized under the care of an orthopedic surgeon, Dr. Woodward. After reviewing Scoles' history, making tests and examinations, and having performed a myleogram, Dr. Woodward diagnosed Scoles' condition as a herniated, or ruptured disc at the fifth lumbro-sacral interspace. In October, 1976, a laminectomy was performed removing the disc. Scoles returned to work on January 11, 1977. His condition proved to be unsatisfactory, and during 1977 he was hospitalized again and was prescribed a brace. Ultimately, in June, 1978, Dr. Woodward performed a spinal fusion. At trial time Scoles was not as yet able to work. He can walk, but he cannot lift, and has pain in his back and leg which disturbs his sleep, thereby requiring medication for pain and sleep.

Scoles' medical history revealed some previous back involvement. In May, 1959, he was diagnosed as having a lumbosacral strain, osteoarthritis, and a degenerated disc, which Dr. Woodward described as a worn out disc. In June, 1975, he slipped and hurt his back at work at SIGECO which was diagnosed as low back strain with no neurological defect. No radicular pain was present in the 1975 episode. Dr. Woodward testified that the 1959 and 1975 back symptoms could be present and not necessarily be indicative of a herniated disc, and it was significant to support that view that in 1975 no radicular pain was present. In conclusion, he stated that based on a reasonable medical certainty he would have to assume that the cause of the herniated disc was the September 7, 1976, accident on the picket line, and that the condition was permanent. He further stated that Scoles was totally disabled so far as work is concerned.

ISSUES

The issues ¹ presented for review are:

I. Whether the trial court erred in overruling defendants' motion for judgment on the evidence at the conclusion of all the evidence;

II. Whether the trial court erred in refusing to give defendants' tendered instructions number 6 and 7;

III. Whether the trial court erred in giving plaintiffs' tendered instruction number 4 over defendants' objection;

IV. Whether the trial court erred in giving plaintiffs' tendered instruction number 11 over defendants' objection;

V. Whether the trial court erred in giving plaintiffs' instruction number 12 over defendants' objection;

VI. Whether the jury verdict is contrary to the law;

VII. Whether the jury verdict is contrary to the evidence; and

VIII. Whether the verdict of the jury is excessive.

DISCUSSION AND DECISION

Issues I, III, VI and VII. Sufficiency of the evidence

SIGECO combines Issues I, III, VI, and VII into one argument, which all essentially raise the question of the sufficiency of the evidence, and we shall discuss them in the order argued. The argument is presented in two parts.

The first argument addresses the refusal of the trial court to withdraw certain issues from the consideration of the jury because of insufficient evidence. The alleged acts of negligence contained in Scoles' complaint are as follows:

1. Failure to keep a lookout for the plaintiff, Merle Scoles;

2. Failure to exercise control over the brakes and steering mechanism of the vehicle the defendant John Clark was driving;

3. Failure to stop the vehicle before striking the plaintiff; and

4. Failure to stop the vehicle.

SIGECO argues that specification 4, which stated that defendant was negligent for "failure to stop the vehicle," was duplicitous, not supported by the evidence, and should have been withdrawn from the jury. SIGECO raises no other matters under this argument, and therefore, any other contentions are waived. Sebasty v. Perschke, (1980) Ind.App., 404 N.E.2d 1200. In support of this argument SIGECO contends that all of the evidence established that Clark did stop before contact with Scoles. It correctly states that upon proper request the trial court should withdraw from the consideration of the jury any issue upon which there is no evidence. Northern Indiana Transit, Inc. v. Burk, (1950) 228 Ind. 162, 89 N.E.2d 905. SIGECO further correctly notes that it is reversible error not to withdraw an issue even if the evidence and instructions as a whole are sufficient to support the jury's verdict on the other issues presented to it. Lawson v. Webster, (1962) 133 Ind.App. 296, 181 N.E.2d 870; Tribune-Star Publishing Co. v. Fortwendle, (1953) 124 Ind.App. 618, 115 N.E.2d 215. In Richmond Gas Corp. v. Reeves, (1973) 158 Ind.App. 338, 302 N.E.2d 795, the court stated that where there is any evidence from which reasonable inferences can be drawn tending to support the theory there is a question of fact which the jury must decide.

Reference to the transcript indicates that SIGECO is in error. It is true that witnesses Norton, Watson, and Smith did testify that before contact Clark's car came to a stop, and then moved forward into and striking Scoles. However, Scoles testified that the Clark car did not stop, and Clark himself stated that he did not stop before contact. We perceive no error in the trial court's refusal to withdraw specification number 4, and to further instruct concerning it.

In the second argument on the sufficiency of the evidence SIGECO asserts that Scoles was guilty of contributory negligence as a matter of law. SIGECO argues that Scoles, by his own testimony, saw Clark approach nearly one-fourth mile away, but stood in the roadway and then looked away as the car approached within a car's length. SIGECO contends that Scoles knew that when the driver approached the picket line the driver's attention would be diverted, and that he would stop and talk to the pickets for 15 seconds or so and then go on. Therefore, when Scoles looked away from Clark's approaching car, which was still traveling at 5-9 m. p. h., such conduct would not constitute the acts of a reasonable man as a matter of law.

The relevant rule is contained in Carroll v. Ely, (1980) Ind.App., 398 N.E.2d 1364, at 1365.

" 'The prevailing Indiana rule is that contributory negligence is generally a question of fact for the jury to determine where the facts are such as to be subject to more than one reasonable inference. However, where the facts are undisputed and only a single inference can reasonably be drawn therefrom, the question of contributory negligence becomes one of law. (Citations omitted.)

'The Supreme and Appellate Courts have many times recognized the test for "negligence as a matter of law" to be that...