Thornton v. Pender

Decision Date20 June 1978
Docket NumberNo. 678S114,678S114
Citation377 N.E.2d 613,268 Ind. 540
PartiesElizabeth Ann THORNTON, by next of friend, John C. Thornton, Jr., Appellant (Plaintiff below), v. Charles R. PENDER, Appellee (Defendant below). Matthew W. THORNTON, by next of friend, John C. Thornton, Jr., Appellant(Plaintiff below), v. Charles R. PENDER, Appellee (Defendant below).
CourtIndiana Supreme Court
Cox, Zwerner, Gambill & Sullivan, Terre Haute, for appellant (plaintiff below)

Jerdie D. Lewis, Lewis & Lewis, Terre Haute, for appellee (defendant below).


PRENTICE, Justice.

This matter is before us upon Defendant's (Appellee's) petition to transfer the cause from the Court of Appeals, First District, which petition is now granted. Mat and Betsy Thornton (Plaintiffs-Appellants Below) brought separate actions for compensatory damages against Charles Pender (Defendant-Appellee), alleging that he negligently operated the automobile that collided with the bicycle upon which both Thornton children were riding. In his answer, Pender denied Plaintiffs' allegations of negligence and further claimed in defense that the plaintiffs' own negligence was a contributing cause of the accident.

Following a joint trial to the jury, a verdict was returned in favor of Defendant, Pender, and the Thorntons appealed.

The Court of Appeals determined that the trial court committed reversible error by refusing one of the Thorntons' tendered final instructions and ordered a new trial. The opinion of the Court of Appeals appears at 346 N.E.2d 631. We adopt Judge Lowdermilk's statement of the 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 grandfather'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 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.

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.

"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 fast, and that his mother was going to be upset because he had been in another accident."


The Court of Appeals reversed the judgment of the trial court for its refusal to give the Thorntons' tendered final instruction number five:

"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 said bicycle."

Under Indiana law, as the Court of Appeals correctly observed, a driver has a duty to maintain a lookout while operating a vehicle. Samuel-Hawkins Music Co. v. Ashby, (1965) 246 Ind. 309, 205 N.E.2d 679; Jackman v. Montgomery, (1974) Ind.App., 320 N.E.2d 770; vehicles approaching from intersecting roads, Samuel-Hawkins Music Co. v. Ashby, supra; and children or bicycles along the road, Taylor v. Fitzpatrick, (1956) 235 Ind. 238, 132 N.E.2d 919. Whether a driver complied with the standard of ordinary care to keep a lookout under the facts of the case is a question for the jury. Board of Commissioners of Delaware County v. Briggs, (1975) Ind.App., 337 N.E.2d 852, reh. den. 340 N.E.2d 373; Martin v. Lilly, (1919) 188 Ind. 139, 121 N.E. 443.

A proper lookout has been defined to mean the duty to see that which is clearly visible or which in the exercise of due care would be visible. McClenahan v. Des Moines Transit Co., (1965) 257 Iowa 293, 132 N.W.2d 471; Ritter v. Andrews Concrete Products & Supply Co., (1958) 250 Iowa 297, 93 N.W.2d 787; Becker v. City of Waterloo, (1954) 245 Iowa 666, 63 N.W.2d 919. See: Kiner v. Northcutt, (10th Cir. 1970) 424 F.2d 222; Jimison v. United States, (9th Cir. 1967) 427 F.2d 1133; Baxter v. Missouri-Kansas-Texas Ry. Co., (8th Cir. 1972) 454 F.2d 25; Pistolesi v. Staton, (4th Cir. 1973) 481 F.2d 1218; Desselle v. State, (1976) La.App., 328 So.2d 389; Munson v. State Dept. of Highways, (1975) 96 Idaho 529, 531 P.2d 1174; Kray v. Ricci, (1973) 14 Ill.App.3d 904, 303 N.E.2d 458; Smithson v. Dunham, (1968) 201 Kan. 455, 441 P.2d 823.

The Thorntons' tendered instruction number five, however, does not refer to a driver's duty to maintain a lookout. It states that a driver has a duty to use care to discover bicycles about to enter a preferential highway from a private drive. The clear implication of the Thorntons' proposed duty to discover vehicles entering or about to enter a preferential highway goes well beyond the established duty to see that which is clearly visible. To "discover" implies a seeking out of that which is not clearly visible.

Matt Thornton testified that he stopped his bicycle at the end of the driveway prior If the plaintiffs failed to stop at the end of the driveway where they could have been seen by the defendant, the defendant could not have been negligent by failing to see them. Plaintiffs' tendered instruction number five, phrased in terms of a duty to discover, might have misled the jury to a contrary conclusion, and was properly refused.

to proceeding onto the road. The evidence established that large bushes obstructed the view of the driveway from the road except for the last several feet. Pender testified that he did not see the plaintiffs stopped at the edge of the road, but saw them only after they were already on the road, just prior to the collision. Whether the children actually stopped at the end of the driveway, where they would have been within the defendant's view if he had been maintaining a proper lookout, or whether they rode from behind the bushes and onto the road without first stopping, was a question of fact to be determined by the jury. In their pleadings and throughout the course of the trial, the plaintiffs refer to the defendant's duty to maintain a proper lookout, and in their brief on appeal, they also argue in favor of their tendered instruction number five in terms of a driver's duty to maintain a proper lookout. Their tendered instruction number five, however, refers to a driver's duty to discover vehicles entering a preferential highway.


It is also necessary to consider the other issues raised in the Thornton's appeal, which were not dealt with by the Court of Appeals due to its disposition of the case. These issues are as follows:

(2) Whether the trial court erred by admitting certain photographs, denominated as Defendant's exhibits A, B, and C.

(3) Whether the trial court committed error by excluding from evidence certain photographs and testimony, offered by Plaintiffs to show skid marks on the road at the scene of the accident.

(4) Whether the court erred by refusing to allow the Plaintiffs' father to express an opinion, as an expert witness, concerning tire skid marks.

(5) Whether the court erred by refusing to admit certain photographs offered by Plaintiffs for the limited purpose of showing the north shoulder of Hull Cemetery Road.

(6) Whether it was reversible error to give final instructions numbered nine and ten.

(7) Whether it was error to refuse Plaintiffs' tendered final instruction number six.


The defense offered three photographs, Exhibits "A", "B" and "C", into evidence, all of which were admitted over Plaintiffs' objections. Exhibits A and B were photographs of Hull Cemetery Road at the scene of the accident, viewed from the east. Exhibit "C" was another photograph of Hull Cemetery Road at the scene of the accident, but viewed from the west.

Charles Pender identified these three photographs and stated that they were accurate representations of the scene as it appeared on the day of the accident. Pender did not know when the photographs were taken. He could not identify certain marks on the road surface, nor did he explain that the foliage shown by the pictures was more abundant than it was at the time of the accident.

Plaintiffs objected to the admission of these photographs upon the ground that Pender had failed to identify them adequately and further objected to exhibit "B" upon the ground that it was of exceedingly poor quality, thereby giving the mistaken impression that the weather was dark and overcast at the time of the accident.

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