Vance v. Wells, 19102

• Citation: 159 N.E.2d 586,129 Ind.App. 659
• Decision Date: 30 June 1959
• Docket Number: No. 1,No. 19102,19102,1
• Parties: Cillar VANCE, Appellant, v. Calvin E. WELLS, Jr., Appellee
• Court: Court of Appeals of Indiana

Page 586

159 N.E.2d 586

129 Ind.App. 659

Cillar VANCE, Appellant, v. Calvin E. WELLS, Jr., Appellee.

No. 19102.

Appellate Court of Indiana, Division No. 1.

June 30, 1959.

Dulberger, Heeter & Salb, Indianapolis, for appellant.

Rocap, Rocap, Reese & Robb, Indianapolis, for appellee.

MYERS, Presiding Justice.

This is an action for damages for personal injuries arising out of an automobile collision wherein the vehicle in which appellant was riding as a passenger collided with the vehicle operated by appellee.

Virginia Vance Shields lived with her husband in Stilesville, Indiana, and her mother, Cillar Vance, the appellant herein, lived in Coatesville, a nearby town. On December 23, 1955, Mrs. Shields left her home, driving a 1955 Ford automobile, and stopped in Coatesville where she picked up appellant in order to go to Greencastle together. Mrs. Shields was planning to finish her Christmas shopping, and her mother, the appellant, wanted to ride along in order to buy a weeding present for her son who was planning on getting married. Arrangements for this trip had been made the night before so they could do their shopping in Greencastle together.

About 8:00 o'clock a. m. on December 23, Mrs. Shields was driving westward on the Greencastle-Stilesville Road which goes through a community known as Chadd Valley, which is approximately four miles east of Greencastle. There the road descends a hill, curves to the left, and passes over a concrete culvert near the foot of the hill, then curves to the right and passes across a bridge over Deer Creek. Mrs. Shields was driving at a speed of approximately 25 miles an hour. She had come down the hill and had started across the culvert when appellee, who was driving a 1942 Chevrolet two-ton truck loaded with lime, approached her from the other side. He was traveling eastward at a speed of about 30 miles an hour. The culvert is narrow, but wide enough for two vehicles to pass. Mrs. Shields' car collided with the truck on the culvert. As a result of the collision, appellant received personal injuries which hospitalized her and gave rise to this action for damages.

The cause was tried before a jury and resulted in a verdict against appellant (plaintiff below) and in favor of appellee. Appellant filed a motion for a new trial, which asserted only one ground as error. This was the giving of an instruction by the court to the jury, which instruction was tendered by appellee and objected to by appellant. The motion for new trial was overruled and this appeal followed.

The only assignment of error presented is the overruling of appellant's motion for a new trial.

Defendant's Instruction No. 1, which is the instruction in question, reads as follows:

'It was the duty of each driver of the cars involved to exercise reasonable care to avoid a collision with the other's automobile and if either the driver or the plaintiff failed to exercise ordinary care to avoid a collision, then such person failing to exercise ordinary care was guilty of negligence.'

Appellant argues that this is an incorrect statement of the law; that it purports to impose upon the appellant the same duty to exercise ordinary care that is imposed upon the driver of the car in which appellant was riding; that it mandates a finding by the jury that appellant was guilty of negligence; and that the instruction was not corrected by other instructions. All of this is denied by appellee.

It is quite likely that, standing alone, this instruction would not correctly state the law. The court, however, gave 23 instructions of its own volition, three instructions tendered by appellant, and five instructions tendered by appellee. An instruction of this type may be cured by other instructions where they are not inconsistent with each other. Stull v. Davidson et al., 1955, 125 Ind.App. 565, 579, 127 N.E.2d 130, 137. In the above case this court said as follows:

'We must read these instructions in question as a part of the entire charge to the jury. If, considering the instructions as a whole, they fully and fairly instruct the jury as to every material fact in controversy, they will be considered as sufficient. Error in any particular instruction will not justify a reversal unless it be of such a nature as to vitiate the whole charge to the jury and such charge is vitiated only when the instruction is so erroneous that it must be concluded that the jurors have been misled as to the law of the case.'

See, also, Carter v. Aetna Life Ins. Co., 1940, 217 Ind. 282, at page 288, 27 N.E.2d 75, at page 77.

The court in the case at bar gave the following instructions:

'Plaintiff's Instruction No. 1

'The plaintiff cannot recover if she, by her own negligence, proximately contributed to her own injury. The burden of establishing such contributary negligence is on the defendant. Negligence on the part of the plaintiff's daughter cannot be imputed to the plaintiff, however, if she be a passive guest. In determining whether or not the plaintiff in this case was guilty of contributory negligence, you shall consider her own acts and conduct and all the other circumstances shown in evidence surrounding the accident and injury, if any, to the plaintiff, and, if you shall find from the preponderance of all the evidence that the plaintiff acted as a person of ordinary prudence under the circumstances, you should find her free from contributory negligence, although you may find that her daughter was guilty of negligence in the driving and management of her automobile. In other words, no negligence of the daughter in the driving and management of her automobile can be imputed to the plaintiff if you find that she, herself, was free from any fault or negligence and was merely the passive guest of her daughter without any authority to direct or control the conduct or movements of her said daughter in the driving and management of said automobile.'

'Plaintiff's Instruction No. 2

'Proximate cause is the act or omission that immediately causes, or fails to prevent, an injury that might have reasonably been anticipated would result from such act or omission and without which such injury would not have occurred. It is the cause which directly and in continuous sequence produces the result and without which such result would not have occurred.'

'Instruction No. 8 (Given by Court)

'Contributory negligence is such negligence on the part of the plaintiff as helped to produce the injuries complained of in plaintiff's complaint.'

'Instruction No. 11 (Given by Court)

'You are instructed that the proximate cause of an injury is not necessarily the immediate cause, but must be the efficient cause, and the efficient cause is that which sets in motion the chain of circumstances leading up to the injury. Causes that are merely incidental to a superior or controlling agency are not proximate causes, though they may be nearer in time to the results. However, there may be more than one cause proximately causing an accident or injury.'

'Instruction No. 14 (Given by Court)

'The word 'guest' is used to denote one whom the owner or possessor of a motor car or other...