Thornton v. Pender, 1--875A142

• Citation: 346 N.E.2d 631
• Decision Date: 11 May 1976
• Docket Number: No. 1--875A142,1--875A142
• Parties: Elizabeth Ann THORNTON, by next friend, John C. Thornton, Jr., Appellant (Plaintiff below), v. Charles R. PENDER, Appellee (Defendant below). Matthew W. THORNTON, by next friend John C. Thornton, Jr., Appellant(Plaintiff below), v. Charles R. PENDER, Appellee (Defendant below).
• Court: Court of Appeals of Indiana

Page 631

346 N.E.2d 631

Elizabeth Ann THORNTON, by next friend, John C. Thornton, Jr., Appellant (Plaintiff below), v. Charles R. PENDER, Appellee (Defendant below).

Matthew W. THORNTON, by next friend John C. Thornton, Jr., Appellant(Plaintiff below), v. Charles R. PENDER, Appellee (Defendant below).

No. 1--875A142.

Court of Appeals of Indiana First District.

May 11, 1976.

Cox, Zwerner, Gambill & Sullivan, Terre Haute, for appellants.

Jerdie D. Lewis, Stephen L. Trueblood, Lewis and Lewis, Terre Haute, for appellee.

LOWDERMILK, Judge.

Plaintiffs-appellants Matthew W. Thornton (Matt) and Elizabeth Ann Thornton (Betsy) brought separate actions against defendant-appellee Charles R. Pender (Pender) for his alleged negligent operation of a motor vehicle.

The Thorntons claim that Pender failed to keep a proper lookout, traveled too fast in an area known to be inhabited by children, failed to have his car under control so as to avoid the collision, failed to warn the children of his approach with an audible signal, failed to reduce his speed upon approaching an area where he knew children frequently played and rode bicycles, failed to swerve his automobile in an attempt to avoid colliding with plaintiffs, and failed to direct his automobile to the norht shoulder of the road to avoid colliding with the plaintiffs.

Pender denied Thorntons' claims of negligence, and alleged that Thorntons were themselves negligent in pulling out in front of the approaching car. The separate actions were joined, and after trial of the cause, the jury returned a verdict for Pender against both plaintiffs.

The Thorntons raise six major errors on appeal, each of which is supported by several different arguments. Pender claims that many of these arguments have not been properly preserved either at trial or on appeal.

FACTS:

Pender was proceeding westbound on Hull Cemetery Road, just outside of Terre Haute, late in the afternoon on a sunny and clear day. The Thornton children had just fed the dogs at their grandfather's home on the north side of Hull Cemetery Road, and were about to ride Matt's bicycle back to their own home, which was about 350 feet east of the granfather's home on the same side of the Road. The open patch of ground between the two homes was separated from the road by a shallow ditch and a row of large multiflora rose bushes. These, bushes blocked the view of both homes' driveways, so that only the last eight feet of the driveway was visible to approaching traffic.

Matt was eleven years old at the time, and had recently received a new 21 inch 'stingray' bicycle with a large 'banana' seat. Although the children had been previously instructed not to ride double, seven year old Betsy decided to ride with Matt back to their home. Matt drove the bike down the driveway, and stopped at the edge of the pavement of Hull Cemetery Road. Matt looked to the east and saw a car approaching some 400 to 500 feet down the road. When he looked to the west, he saw that several large dogs were beginning to chase them as they had done on several previous occasions. Matt said something to his sister about the dogs, and then pulled out into the road in an attempt to escape them. They were struck by Pender just as they were passing the center of the blacktop road.

Matt and Betsy were both thrown 50 feet down the road into the south ditch. The bicycle was thrown 100 feet down the road. Pender's car stopped crosswise in the road just past the bicycle. The children were still afraid of the dogs, and asked not to be left alone, so Pender put the children in his car and took them to their home, and eventually to the hospital.

Immediately after the accident, Matt allegedly stated to Pender that he was sorry he had pulled out in front of him. Pender allegedly told the children's older sister that he was hurrying home and was going too fact, and that his mother was going to be upset because he had been in another accident.

DISCUSSION:

The major theory of the Thorntons' case was that Pender was negligent in failing to keep a proper lookout, and that had he kept a proper lookout, he would have been able to avoid the collision when he saw the children pull out into the road.

In line with this theory, the Thorntons submitted the following instruction to the court:

'It is the duty of a driver of a motor vehicle on approaching a street or private driveway intersection to use reasonable care to discover whether or not there is any bicycle approaching or entering such intersection. Even though the highway upon which the driver of the motor vehicle is traveling be a preferential one, it is still the duty to use due care to avoid coming into a collision with the said bicycle.'

The trial court refused to read the instruction to the jury.

It is well settled that a refusal to give a requested instruction which correctly states the law applicable to the facts in issue is error unless the substance of the requested instruction is covered by other instructions given to the jury. Gamble v. Lewis (1949)...