Spickelmeir v. Hartman , 9711.

Docket NºNo. 9711.
Citation72 Ind.App. 207, 123 N.E. 232
Case DateMay 15, 1919
CourtCourt of Appeals of Indiana

72 Ind.App. 207
123 N.E. 232


No. 9711.

Appellate Court of Indiana, Division No. 1.

May 15, 1919.

Appeal from Superior Court, Marion County; James L. Leathers, Judge.

Action by Mary Hartman against John W. Spickelmeir. Verdict and judgment for plaintiff, motion for new trial overruled, and defendant appeals. Affirmed.

[123 N.E. 233]

Charles F. Williams and Wm. E. Reiley, both of Indianapolis, for appellant.

Noble H. Wible and Charles K. McCormack, both of Indianapolis, for appellee.


This is an action by appellee against appellant to recover damages for personal injuries alleged to have been received by her by reason of the negligence of appellant in operating an automobile. The specific acts alleged and relied on are that appellant negligently operated said automobile along a certain street in the city of Indianapolis at a high and dangerous rate of speed, without sounding a horn, or giving appellee any warning of his approach, and as a proximate result thereof appellee's buggy was violently struck by said automobile, causing her serious injury. The complaint is in a single paragraph, and was answered by a general denial. The cause was tried by a jury, resulting in a verdict in favor of appellee on which judgment was duly rendered. Appellant filed a motion for a new trial, which was overruled, and this action of the court is the sole error assigned and relied on for reversal.

[1] Appellant contends that the court erred in giving instructions Nos. 7, 10, 11, and 12. He bases his contention as to said instruction No. 7 on the following sentence therein:

“Negligence, whether on the part of the plaintiff or on the part of the defendant, may be defined as the doing or failing to do some act or thing, which, under the circumstances, it was the duty of the plaintiff to do or to leave undone.”

It has been held that where a mistake in the use of words in an instruction is so obvious that the jury could not have been misled, the error will be deemed immaterial. Cleveland, etc., R. Co. v. Clark (1912) 52 Ind. App. 646, 99 N. E. 777;Pittsburgh, etc., R. Co. v. Carlson (1899) 24 Ind. App. 559, 56 N. E. 251;Anderson v. Anderson (1890) 128 Ind. 254, 27 N. E. 724. The same rule should be applied where the omission of one or more words is so obvious that it is manifest that the jury could not have been misled thereby. In the instant case it is clear that the jury could not have understood from the language used in said instruction that it should determine appellant's negligence from appellee's conduct, but must have understood that the negligence of each party was to be determined from his or her own acts or omissions.

[2] Appellant contends that the court erred in giving instruction No. 10, for the reason that it is assumed therein that appellee suffered the injuries alleged in the complaint. We do not agree with this contention. The jury was told by instruction No. 5 that before plaintiff is entitled to recover she must establish, by a fair preponderance of the evidence, that she received the injuries, or some part thereof, as alleged in the complaint. Instruction No. 10 is expressly based on the condition that the jury find for the plaintiff under the rules given, which would include the rule stated in said instruction No. 5. Such a finding would therefore necessarily imply that appellee received at least some part of the injuries alleged. Hence there is no assumption of the fact of appellee's injuries as claimed by appellant.

It is urged that instruction No. 11 is erroneous, as it assumes that the failure of appellant to sound the horn; or give appellee any warning of the approach of his automobile, was negligence, and that appellee's injuries were the proximate result thereof. An examination of said instruction discloses that it is not subject to the infirmities claimed, and that the court did not err in giving the same.

[3][4] Appellant claims that instruction No. 12 is erroneous because it omits the element of proximate cause. By this instruction the court informed the jury in effect that, if it found that appellant was not guilty of the negligence charged in the complaint, its verdict should be in his favor. The instruction was complete without any reference to the question of proximate cause. But in any event appellant was not harmed by such omission, as the subject-matter in question was covered by another instruction given. Cullman v. Terre Haute, etc., Co. (1915) 60 Ind. App. 187, 109 N. E. 52.

[5][6] Appellant also predicates error on the action of the court in refusing to give instructions Nos. 1 and 2 requested by him. Said instruction No. 1 is as follows:

“If you find from the evidence that at the time of the collision there was an ordinance in full force and effect in the city of Indianapolis, which provided and required drivers of vehicles to indicate by hand or whip the direction in which they were going to turn, then I instruct you that the defendant had a right to rely and assume that the plaintiff in this case would signal him by hand or whip the direction in which she was about to turn, if she was about to turn at the time of the collision; and you may take into consideration the fact that she failed to give such a signal, if you find that she did fail to give said signal, as to whether or not she was guilty of contributory negligence. And if you so find your verdict should be for the defendant.”

This instruction, if given, would have had the effect of informing the jury that appellant had the right to assume that...

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