Thompson v. Ashba

• Decision Date: 26 December 1951
• Docket Number: No. 18177,18177
• Parties: THOMPSON v. ASHBA.
• Court: Indiana Appellate Court

Page 519

102 N.E.2d 519

122 Ind.App. 58

THOMPSON v. ASHBA.

No. 18177.

Appellate Court of Indiana, in Banc.

Dec. 26, 1951.

Emison & Emison and John Rabb Emison, all of Vincennes, Joe W. Lowdermilk, Sullivan, for appellant.

Thomas J. Gallagher, Sullivan, for appellee.

ACHOR, Judge.

This was an action for damages for personal injuries sustained by appellee. The essential facts in the case, as supported by evidence most favorable to the appellee, are as follows:

The appellant was operating an automobile east on East Jackson Street in the residential section of the city of Sullivan, Indiana, at a speed of 'about 40 to 45 miles per hour.' There were two trucks parked on the south side of the street at the point of collision. The appellee, a child three years of age, 'hurried' from between said trucks on the south side of said street, across said street toward the north side thereof. He was struck by the appellant while so crossing the street. The street was 'about 30 feet wide' and wide enough for two cars to pass on the north side of said parked trucks. Appellant drove his automobile to the left of said trucks 'in the center of the street measuring from the north side of the parked cars over to the north curb' and 'about two or three feet' from the north curb. The appellant 'set his brakes and traveled 35 to 40 feet' before the impact; 'as soon as he hit the boy hs stopped right then.' The boy 'just rolled over to the north curb' and 'laid still.' 'When the car came to a stop the child was laying about three feet in front of it.'

The verdict was for $22,500.00. After a remittitur of $7,500.00 judgment was for $15,000.00

Among the errors assigned were the giving of the court's instructions numbered 6 and 8 over the objection of the defendant. Because of the decision reached by this court it is unnecessary to consider the other errors assigned. After considering the principles set forth in this opinion it is not likely that any error, if any contained therein, will be repeated.

The court's instruction numbered 6 was as follows:

'Persons operating motor vehicles on the public highways are entitled to rely on other persons using reasonable and ordinary care for their own safety. In the case of children, however, the law does not require, and adult persons may not expect, the same discretion for their own safety as in the case of older persons.

'Childen must be expected to act upon childish instincts and impulses, and others, who are charged with duty of care and caution towards them, must calculate upon this and take precautions accordingly. Therefore, greater care is required to avoid injuries to children of tender years than to persons who have reached the age of discretion.

'This does not mean, however, that every adult who is instrumental in causing an injury to a child is liable in damages therefor. Even though an adult may know of the presence of children or be chargeable with knowledge of the probability of their presence, yet if he acts with the reasonable and ordinary care demanded by the circumstances and such knowledge, he is not liable even though he may be instrumental in causing a child's injury, because in such case he would not be negligent.'

Defendant's objections to the court's instruction No. 6 are as follows:

'(a) Instruction No. 6 of the Court's instructions which the Court has indicated will be given of its own motion is erroneous and misleading in that it tells the jury that there are degrees of care required to avoid injuries to children of tender years, whereas there are no degrees of care, but it is due care under the circumstances and one of the circumstances is that a child of tender years in involved.

'(b) The Court also makes a comparison in the instruction that there is a greater care required to avoid injury to children of tender years than to persons who have reached the age of discretion.'

That portion of the instruction to which the appellant objects is as follows: 'Therefore, greater care is required to avoid injuries to children of tender years than to persons who have reached the age of discretion.'

There are no degrees of negligence in the State of Indiana, neither are there degrees of care. The law upon this subject has been stated as follows:

'If there can be no degrees of negligence, it must follow that there can be no degrees of duty. Duty is an absolute term. The law requires nothing more than duty; it will excuse nothing less.

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'The use of such terms as 'slight care,' 'great care,' 'highest degree of care,' or other like expressions in instructions as indicating the quantum of care the law exacts under special conditions and circumstances, is misleading; and when so used they constitute an invasion of the province of the jury, whose function it is to determine what amount of care is required to measure up to the duty imposed by law under the facts of the particular case. The law imposes but one duty in such cases, and that is the duty to use due care'. Union Traction Co. v. Berry, 1919, 188 Ind. 514, 121 N.E. 655, 657, 124 N.E. 737, 32 A.L.R. 1171.

The care required varies with each case, with each set of facts; an instruction on the quantum of care invades the province of the jury. Jones et al. v. Cary, 1941, 219 Ind. 268, 37 N.E.2d 944; Union Traction Co. of Indiana v. Berry, supra; Elder v. Rutledge, 1940, 217 Ind. 459, 27 N.E.2d 358.

The court's instruction No. 8, the giving of which appellant has assigned as error, is as follows:

'There is a Statute in the State of Indiana which was in full force and effect on the date involved in this case, which provides that upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway. ( § 47-2010, Burns' Ann.St.) The Statute makes certain exceptions which are not applicable in this case.

'The fact, if it be a fact, that the defendant in this case was driving on the left side of the street at the time of the collision with plaintiff would not of itself justify a verdict for plaintiff, unless you find further by a preponderance of the evidence that said fact was a...