Bixenman v. Hall

231 N.E.2d 530, 141 Ind. App. 628

• Court: Indiana Court of Appeals
• Decided: December 31, 1968
• Docket: 20,664
• Status: Published

Opinions

Bierly, J.

This action, commenced in the trial court by appellant, is for damages for the death of appellant’s child.

It appears from the record that appellant’s son, who was 13 years of age, was riding his bicycle in a southerly direction on the left side of Court Street, contrary to § 57-2109 Burns’ Anno. Stat. (1965 Replacement). Court Street is intersected by Crestview Lane to form a “T” intersection. Crestview traffic at the intersection is controlled by a yield sign for Court Street. Appellee Alice S. Hall was driving in a westerly direction along Crestview as she approached the yield sign. On the northeast corner of the intersection there is a house or dwelling surrounded by a hedge approximately a distance of three to five feet from the eastern edge of Court Street. As she approached the intersection appellant’s son was riding down South Court Street alongside appellee, Merritt C. Busselberg, who was driving a truck owned by appellee, Lake County Agricultural Society, in the right lane going south.

As appellee approached the intersection she looked to the right and saw appellee’s truck; then she looked left and saw some automobiles coming from the south. She decided that she had enough time to make her right turn so she eased out into the intersection, and as she did so, she saw appellant’s son and slammed on her brakes. The boy was either thrown under the wheels of the truck or driven against the side of the truck.

Trial was had by jury, which, by order of the court, returned directed verdicts for appellees, Busselberg and Lake County Agricultural Society, and a verdict for the remaining appellee, Alice B. Hall. Judgment was entered accordingly.

Appellant assigns as error the trial court’s action in overruling his motion for a new trial which contained the following specifications:

“1. The verdict is contrary to law.

“2. Error of law occurring at the trial in this:

“A. The Court erred in sustaining a motion for directed verdict filed by defendant Merritt C. Busselberg at the close of plaintiff’s evidence.

“B. The Court erred giving defendant Merritt C. Busselberg’s Instruction No. A at the close of plaintiff’s evidence, by which the jury was peremptorily instructed to return a verdict finding for defendant Merrit C. Busselberg.

“C. The Court erred in sustaining a motion for directed verdict filed by defendant Lake County Agricultural Society at the close of plaintiff’s evidence.

“D. The Court erred in giving defendant Lake County Agricultural Society’s Instruction No. 3 at the close of plaintiff’s evidence, by which the jury was peremptorily instructed to return a verdict for defendant Lake County Agricultural Society.

“E. The Court erred in giving each of the Instructions Numbered 2, 3, 12, 15, 20, 23, 24, 29, 32 and 33, at the request of defendant Alice B. Hall, which instructions were specifically objected by the plaintiff out of the presence of the jury and before argument.

“F. The Court erred in refusing to give each of the Instructions Numbered 5, 6, 7, 10, 12, 13, 14, 15, 21 and 22, which were tendered and requested by plaintiff.”

Appellant has seen fit to group his various specifications of alleged error into two groups; the first is concerned with the doctrine of last clear chance and the second is concerned with the contributory negligence of a child. Appellant also briefly discusses in a third group, alleged errors in certain other instructions.

His first errors specified are divisions A, B, C and D, in his motion for a new trial which are concerned with peremptory instructions.

The general rule in this regard is stated in Reynolds, Admtrx. etc. v. Langford (1961), 241 Ind. 431, 172 N. E. 2d 867, wherein our Supreme Court found that:

“The trial court may properly give a peremptory instruction to find for the defendant ‘[w]hen there is a total absence of evidence or legitimate inference in favor of the plaintiff upon an essential issue; or where the evidence is without conflict and is susceptible of but one inference and that inference is in favor of the defendant.’ Whitaker, Admr. v. Borntrager (1954), 233 Ind. 678, 680, 122 N. E. 2d 734; Johnson v. Estate of Gaugh, et al. (1955), 125 Ind. App. 510, 519, 124 N. E. 2d 704; Vann v. Vernon General Ins. Co. (1956), 126 Ind. App. 503, 133 N. E. 2d 70.”

Also, see: Kampo Transit, Incorporated v. Powers (1965), 138 Ind. App. 141, 211 N. E. 2d 781; Pennsylvania Railroad Company v. Mink (1966), 138 Ind. App. 311, 212 N. E. 2d 784.

Appellant contends that appellees Lake County Agricultural Society and Busselberg were negligent in that the latter, as agent for the former, failed to blow his horn or give decedent any warning of his presence, and secondly that he failed to reduce his speed or alter his course in such a way as to avoid striking decedent, or so as to avoid making his truck a backstop for the Hall auto.

We have reviewed the evidence most favorable to the appellant on the question of appellees Busselberg and Lake County Agricultural Society, and conclude there to be a total lack of same on the question of their negligence. Thus, the trial court was not in error when it directed a verdict in their favor.

Appellant’s next contention of error is the trial court’s refusal to give two instructions regarding last clear chance with respect to appellee Hall. The substance of appellant’s Instruction No. 7 was that any negligence on decedent’s part would ordinarily bar recovery, but there is an exception known as last clear chance. The elements of this doctrine are that both persons are negligent, the injured person, through his own negligence has placed himself in a position of peril, and the person causing the injury discovers the injured person’s position of peril, and has the physical and mental ability to avoid the injury but negligently fails to exercise ordinary care to do so, and this injury proximately resulted from this failure.

Instruction No. 10 was similar to No. 7, except that it did not specifically list the elements of the doctrine as did No. 7.

In order that the doctrine of last clear chance apply, the appellee Hall had to discover or become aware of decedent’s position of peril, and must have had the physical and mental ability to avoid injury to the decedent but negligently failed to exercise ordinary care to do so. See: Stallings v. Dick (1965), 139 Ind. App. 118, 210 N. E. 2d 82, and cases cited therein. Appellant set out portions of testimony and depositions to support his argument that the jury should have been instructed on last clear chance.

Mr. Lester Albert Carl testified that:

“At the time, I mean, what I think happened, I think she got excited when she hit the boy and her foot hit the throttle. That is what made the impact as hard as it was.”

Witness Helen Carr testified by deposition as follows:

“Q. You mentioned that the first observation you had of the boy, he was on the fender of the car.

“A. Yes.

“Q. Do you recall which fender?

“A. The left front.

“Q. You said it appeared that he bounced. Can you describe that for us, just a little better?

“A. Well, when the car hit him, I believe she must have put on the brakes and then all of a sudden, it darted forth, and when it darted forth, he came up off a little bit and then she drove it into it again — I mean into the truck — she hit him twice.”

The appellee, Hall, testified as follows:

“A. Well, I went several feet past the yield sign, then stopped, and looked to my right and saw the truck going south, in the southbound lane. Then I looked north and I saw two cars coming very slowly, north, in the northbound lane.

“Q. Did you stop a second time?

“A. Well, after I stopped and looked to the right and to the left, I started to ease out.

“Q. In other words, you came to a complete stop, somewhere west, or past the yield sign, is that right?

“A. Yes.

“Q. And then you started out very slowly, I don’t remember the words you used, you started out very slowly making your turn, is that correct?

“A. Yes.

“Q. I believe you said, you said five or six miles an hour, was that about your best guess.

“A. I think so, I was just easing out.

“Q. All right. Between the time you started out very slowly, and five or six miles an hour, did you increase your speed any, between that time and the time you came in contact with the truck?

“A. I may have just started to increase my speed as I was making my turn.

“Q. Well, what would be your statement, Mrs. Hall, of the highest speed you attained between the time you made the complete stop, just past the yield sign, and the time your car came in contact with the truck?

“A. I don’t think I was going more than ten miles at any time.

“Q. Not more than ten.

“Q. You didn’t stop a second time, between the time you were at the yield sign and the time you made contact with the truck, did you?

“A. No. I slammed on my brakes when I saw the boy and swerved. I don’t know if I ever came to after I — we brushed, I don’t know. I can’t remember what happened until I was into the truck; whether I made a complete stop when I slammed on the brakes, I don’t know.

“Q. In other words, to the best of your recollection, Mrs. Hall you were going five or six miles an hour, you saw the boy, maybe as high as ten, is that right? Your saw the boy, you slammed on your brakes, is that correct?

“A. Yes.

“Q. And were the brakes working?

“A. Yes.

“Q. They were in good condition?

“A. Yes.

“Q. And you kept the brakes on all the way until, all the way down until you hit the truck, is that right?

“A. I don’t know. After the bicycle and the car brushed and I had turned, I don’t remember what happened until I actually stopped at the truck.”

Appellant states that from the above evidence, it is shown that there “may have been a sudden acceleration on the part of the appellee Hall.” That “appellee Hall struck Dean two separate times.” That “appellee Hall was negligent in failing to see Dean Bixenman approaching the intersection,” and that “appellee Hall had a clear chance to avoid killing the boy simply by keeping her foot on the brake.”

Appellant further suggests that:

“The only logical conclusion, in view of the force with which she struck the truck, is that after seeing the boy and applying her brakes, she became panic stricken and put her foot on the accelerator, just as suggested by the Witness Lester Albert Carl.”

It appears to us that the question of appellee Hall’s negligent failure to see the decedent approaching the intersection would have no bearing on the question of last clear chance. As was stated in Heldt v. Thompson (1927), 86 Ind. App. 270, 157 N. E. 60, and cited in the Stallings case, supra:

“The last clear chance contemplates a known peril which can be avoided by due care, not a peril which might have been known by the exercising of due care. In other words, it is the negligent failure to avoid discovered peril that makes applicable the rule of last clear chance.” (Emphasis supplied).

It also appears obvious that appellee Hall did not have the requisite physical and mental ability to avoid the boy’s death. See: Ewing v. Biddle (1966), 141 Ind. App. 25, 216 N. E. 2d 863.

Nor was the necessary time element present, for in order that the doctrine apply, the peril must be known “. . . in time to clearly afford an opportunity to avoid injuring the one in peril. . . .” Terre Haute, etc., Traction Co. v. Stevenson (1920), 189 Ind. 100, 105, 123 N. E. 785.

We are of the opinion that the trial court did not err in refusing to instruct the jury on the doctrine of last clear chance.

Appellant’s next proposition of error concerns specifications E and F of his motion for a new trial, swpra.

Basically his argument could be summarized as follows: Under Indiana law, the contributory negligence of a child is to be determined in light of what a child of like age, intelligence and experience would have done under the same or similar circumstances.¹ However, Indiana also has repeatedly invoked the negligence per se doctrine, which purports to attach strict liability to one who has violated a statute, such violation being the proximate cause of the injury complained of.

The appellant then maintains that:

“The effect of appellee Hall’s instruction 12, 3 and 2, is to take away any significance which the jury might have attached to Dean’s age, intelligence, and experience. These instructions reject the legal proposition that a child must be judged by a child’s standards. What difference would it make if Dean were 13? or 10? -or even 4 years of age? What difference would it make if he were above or below normal intelligence and understanding? The offensive instructions told the jury that Dean was negligent per se because he was in the wrong traffic lane, violating a statute. Because of these instructions, his age, intelligence and experience were never considered by the jury.”

The three Instructions and the objections made thereto are set out as follows:

“INSTRUCTION NO. 12

“A statute of the State of Indiana, in full force and effect at the time of the accident in controversy, provided as follows:

“Driving to the left of center of roadway further limitations.— (a) No vehicle or bicycle shall at any time be driven to the left side of the roadway under the following conditions:

‘When approaching within 100 feet of or traversing any intersection. . . .’

“If you find from fair preponderance of the evidence in this case at the time of the accident in controversy the Plaintiff’s decedent failed to obey the provisions of this statute, then such conduct on the part of the Plaintiff’s decedent would .constitute negligence.”

Objected to by the appellant as follows:

“For the reason that said instruction is mandatory, and invades the province of the jury, and calls for the jury to exclude and permits consideration, the matter of age of plaintiff, which was established as 13, his training, intelligence, and experience, and requires that the same standard of care be applied as would be applicable of an adult.”

“INSTRUCTION NO. 3

“You are instructed that, even though you should believe that Dean Bixenman was ignorant of the statutory provisions concerning the manner of the operation of his bicycle on public highways, it was no excuse for a violation of such statute.”

Objected to by the appellant as follows:

“For the reason that the same invades the province of the jury in that it deprives them of the right to determine whether the conduct of plaintiff’s decedent was negligent in view of his age, experience and education; and applies an erroneous principle of law in that in the majority of the states passing upon the question of a mere statutory violation is but prima facie evidence and the minority, lack of experience of the person charged with the violation of the statute is a matter for the consideration by the jury in determining whether or not his conduct is negligent. That the test properly for the jury would be — did the plaintiff conduct himself in a manner reasonable and prudent for persons similarly situated; and in consideration of the persons the jury are required to take into consideration, minority, capacity, state of education and general ability.”

“INSTRUCTION NO. 2

“You are instructed that the fact that the plaintiff’s decedent, Dean Bixenman, was a boy a little over 13 years of age, does not excuse him from complying with all of the statutes of the State of Indiana pertaining to the operation of bicycles on public highways.”

“That the Instruction takes away from the jury the matter of determining the negligence of plaintiff’s decedent in the light of his age, wisdom, and experience as set forth in numerous decisions of the Indiana Supreme and Appellate Courts and as enunciated by the restatement of the law of torts. Plaintiff further objects to said Instruction for the reason that the same is mandatory. Plaintiff further objects to said Instruction for the reason that the same singled out one particular element.”

The trial court did give appellant’s Instruction No. 9, which stated:

“If you find from a preponderance of the evidence that at the time of his death, Dean E. Bixenman, was a child 13 years of age, you are instructed that he was bound only to exercise such care for his own safety as would ordinarily be exercised by children of like age, knowledge, judgment and experience under the facts, circumstances and conditions disclosed by all of the evidence herein.”

Upon a review of this issue, we find that it has been the subject of much litigation which advocates a special exemption for children under the statutory violation cases. See the following: 174 A. L. R. 1171, 26 S. Cal. L. Rev. 335, 37 Texas L. Rev. 255, 3 Vand. L. Rev. 145, 48 Kentucky L. J. 601.

However, we believe that under Indiana law, no such special treatment for children exists. Appellant points out that in Herrin v. Stark (1964), 136 Ind. App. 135, 198 N. E. 2d 397, an instruction similar to those present in the case at bar was approved, but not contested on the same grounds as in the case at bar. However, in the case of Ewing v. Biddle (1966), 141 Ind. App. 25, 216 N. E. 2d 863 (Petition for transfer denied), our court stated that:

“To give legal sanction to the operation of automobiles, bicycles or any other motor driven vehicle by minors or teenagers, with less than ordinary care, for the safety of others, would be impractical as well as dangerous. If the rule were otherwise, a state of uncertainty would result, because then it would be a question for juries and courts to determine whether minors of various ages would be held to a different standard of care than adults and all others.

“In this modern day we must take judicial notice of the hazards of traffic, and travelers must not be forced to anticipate conduct other than that expected of all ordinary citizens. It would be impossible to know if all cars, bicycles and other vehicles were operated by adults, a minor twenty years old, fifteen years old or ten years old. Since there is no exception in the statutes which exempts anyone from the provisions thereof, we feel that the law applies equally to all.”

We have reviewed the final portion of appellant’s brief and find no error in regard to the instructions contained therein. The majority of this portion covers alleged errors which were covered in the first and second portions of appellant’s argument. We are of the opinion that the trial court fairly instructed the jury and committed no reversible error; and we are of the opinion that the judgment of the trial court should be affirmed.

Judgment affirmed.

Pfaff, C. J., concurs;

Cook, J., concurs in result;

Smith, J., concurs in result only, with concurring opinion.

1 . Appellant cites the following to sustain this proposition: “Cleveland Railway Co. v. Miles (1904), 162 Ind. 646, 70 N. E. 985; Indianapolis Railways v. Williams (1945), 115 Ind. App. 373; 59 N. E. 2d 586, 34 Indiana Law Journal p. 511, Contributory Negligence of Children in Indiana: Capacity and Standard of Care.”