Stein v. Yung

• Decision Date: 11 March 1985
• Docket Number: No. 3-284A45,3-284A45
• Citation: 475 N.E.2d 52
• Parties: Geoffrey A. STEIN and Bliss & Laughlin Steel, Appellants (Defendants Below), v. Raymond YUNG, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 52

475 N.E.2d 52

Geoffrey A. STEIN and Bliss & Laughlin Steel, Appellants (Defendants Below), v. Raymond YUNG, Appellee (Plaintiff Below).

No. 3-284A45.

Court of Appeals of Indiana,

Third District.

March 11, 1985.

Edward N. Kalamaros, Thomas Cohen, Edward N. Kalamaros & Associates, Professional Corp., South Bend, for appellants.

Richard F. Joyce, James N. Clevenger, Kizer, Neu, Joyce, Wyland, Humphrey, Wagner & Gifford, Plymouth, for appellee.

STATON, Presiding Judge.

Geoffrey A. Stein and Bliss & Laughlin Steel appeal from judgment entered on a verdict in favor of plaintiff Raymond Yung.

The sole issue presented for review is whether the trial court erred in refusing to give Stein's tendered instruction on the sudden emergency doctrine.

Affirmed.

When the trial court refuses to give a jury instruction tendered by a party, our task on review is to determine: whether the tendered instruction correctly states the law; whether there was evidence within the record to support giving the instruction; and, whether the substance of the instruction was adequately covered by other instructions which were given. Fall v. White (1983), Ind.App., 449 N.E.2d 628, 635. An error in failing to give an instruction will not be presumed fatal unless the complaining party can show prejudice to substantial rights. Indianapolis Transit System, Inc. v. Williams (1971), 148 Ind.App. 649, 269 N.E.2d 543, 549.

The record shows that around 5:00 o'clock p.m. on May 15, 1979, Stein, a truck driver for Bliss & Laughlin Steel, was driving his tractor trailer westbound on U.S. 30 in Marshall County. The weather was clear and sunny and the pavement was dry.

Stein testified he was traveling 55 miles per hour in the right hand lane when he approached another car also moving at about 55 miles per hour in the right lane. Stein decided to pass the car ahead of him, checked to see if traffic was clear and noticed Yung's pick-up truck about three quarters of a mile ahead in the left hand lane, also westbound and traveling, according to Stein's estimate, at about 50 miles per hour. Stein turned on his turn signal and pulled out to pass. He related the events leading up to the accident as follows:

"By the time I was trying to clear the car in my right hand lane the pick-up truck was too close. He was not going 50 miles an hour. He was proceeding to make a left hand turn which I did not know. The sun was definitely bright coming out. At the time I looked at it, it was too late. I hit him. The brakes were applied, I did notice that I was going to hit him so I tried to stop, but there was nothing I could do. The truck was 25,000 pounds empty. When it starts sliding down the road you can't stop it."

and

"The vehicle I was passing was still on the right hand corner of my trailer. If I had turned over to get in the right hand lane he would have been hit."

William Wright, the driver of the car Stein was attempting to pass, testified that he plainly saw Yung's pick-up ahead with brake lights and turn signal on, slowing to make a left turn. He also saw Stein approaching very fast from behind and said,

"... at that time I did realize that he couldn't go around me because he would hit the pickup truck which I saw very plain there. There wasn't enough room between my car and Mr. Yung's truck for him to pass me and I was getting ready to pull off the side of the road to avoid being hit in the rear end by the semi trailer."

Stein argues on appeal that his theory of the case was that his vision was momentarily obscured by the sun, preventing him from seeing Yung's truck slowing to turn left in time to avoid hitting Yung from behind. He contends this constituted a sudden emergency or peril which entitled him to have the jury instructed as follows:

"You are instructed that where a person is confronted with a sudden emergency not of his own making without sufficient time to determine with certainty the best course to pursue, he is not held to the same accuracy of judgment as would be required of him if he had time for deliberation. Accordingly, if he exercises such case [sic ] as an ordinary prudent person would exercise when confronted by...