Harper v. James

203 N.E.2d 531, 246 Ind. 131, 1965 Ind. LEXIS 332

• Court: Indiana Supreme Court
• Decided: January 11, 1965
• Docket: 30,710
• Status: Published

Opinions

Achor, J.

The action is before this court on petition to transfer. [See: Harper v. James (1963 Appellate Court) 191 N. E. 2d 504.]

This is an action for personal injury arising out of an automobile collision. Judgment was for the defendant-appellee.

Appellant, in Cause 1-B of her motion for new trial, assigns as error giving of the trial court’s Instruction No. 10. The instruction is as follows:

“You are instructed that you are not allowed to conjecture that any conduct on the part of the defendant was the direct and producing cause of the collision. You may not legally guess a verdict in favor of either party. So in this case the burden is upon the plaintiff to prove by a fair preponderance of all the evidence in this case the material allegations of her complaint and likewise to prove by a fair preponderance of all the evidence in this case facts showing that the alleged misconduct of the defendant was the sole proximate cause of the collision or damages complained of; and the failure in this particular on the part of the plaintiff is fatal to her recovery, and in such case your verdict should be for the defendant.” [Our emphasis.]

First, appellant equates “conjecture” with “think.” Thus, with this interpretation appellant claims that the instruction invades the province of the jury. However, the use of the word “conjecture” is not erroneously used in the instruction. The word is defined:

“An idea or notion founded on a probability without any demonstration of its truth; an idea or surmise inducing a slight degree of belief founded upon some possible, or perhaps probable fact of which there is no positive evidence . . . An explanation consistent with but not deducible as a reasonable inference from known facts or conditions. . . .” Black’s Law Dictionary 4th Ed (1957), p. 373.

The use of the word conjecture is consistent with numerous decisions of this court which have held that a verdict cannot be based on mere guess, conjecture, surmise, possibility or speculation. Newsom v. Pennsylvania Railroad Company (1962), Ind. App. 186 N. E. 2d 699; Kelly v. Davidson et al. (1959), 129 Ind. App. 384, 154 N. E. 2d 888; Smith, Executrix v. Strock, Executor (1945), 115 Ind. App. 518, 60 N. E. 2d 157. The failure to use a particular word in an instruction is not error if the word used conveys the proper meaning. For example, see: Lincoln National Bank & Trust Co. v. Parker (1941), 110 Ind. App. 1, 34 N. E. 2d 190; Brooks v. Muncie Traction Co. (1911), 176 Ind. 298, 95 N. E. 1006.

However, this instruction was erroneous because it imposed a burden upon the plaintiff-appellant of proving the absence of contributory negligence.

In King’s Indiana Billiard Co. v. Winters (1952), 123 Ind. App. 110, 125-126, 106 N. E. 2d 713, the problem was discussed as follows:

. “Appellants’ objections to the giving of Instructions Nos. 1, 3 and 5 are based upon the contention that each of the three instructions were mandatory, but failed to include the element of appellee’s freedom from contributory negligence. Each of such instructions contained statements to the effect that if the jury found that the appellants’ negligence was the sole and proximate cause of appellee’s injuries the verdict should be for the plaintiff. By the use of such words the court told the jury that they must find that the defendant’s negligence was the sole proximate cause of appellee’s injuries and in so doing, said in effect there must have been no other proximate causes, which other proximate causes would include the contributory negligence, if any, of the plaintiff. Weis v. Wakefield (1942), 111 Ind. App. 106, 38 N. E. 2d 303; Gerow v. Hankins (1934), 99 Ind. App. 352,192 N. E. 713.” ¹

A plaintiff is not required to allege or prove freedom from contributory negligence. Acts 1959, ch. 63, §1, p. 130, being §2-1025, Burns’ 1946 Repl. (1964 Supp.); Lincoln Operating Co. v. Gillis (1953), 232 Ind. 551, 114 N. E. 2d 873; Michigan Cent. R. R. Co. v. Spindler, Admr. (1937), 211 Ind. 94, 5 Ñ. E. 2d 632. Instruction No. 10 which imposed this burden upon appellant was erroneous.²

Appellee contends that Instructions Nos. 4, 19, and 20 given by the court correctly state the law as to the burden of proof of contributory negligence and that these instructions cured the error, if any, in Instruction No. 10. However; the error cannot be rendered harmless by the mere giving of other instructions which state the law correctly.

As stated in Fowler v. Wallace (1892), 131 Ind. 347, 355-356, 31 N.E. 53:

“. . . It is an elementary principle of procedure that the court can not by contradictory instructions leave to the jury the duty of determining which of the two lines of instructions shall be followed, or what. rule of law shall control the case. The law must come from the court, and be so declared that the jury can follow it without confusion;”

Judgment reversed.

Arterburn, C. J., Landis & Myers, JJ., concur.

Jackson, J., dissents, with opinion.

1 . It is asserted that the giving of appellee’s Instruction No. 10, although erroneous, did not constitute reversible error because the appellant, herself, used the phrase “sole proximate cause” in instructions tendered by her, and thus invited the error. It is true that appellant correctly used the phrase in other instructions. However, the proper use of the phrase in appellant’s instructions cannot be said to invite or justify its erroneous use in another instruction given by the court, as is the circumstance in this case.

2 . It is asserted in the dissenting opinion that discussion regarding the giving of Instruction No. 10 is mere dicta, since the instruction “was not mandatory.” However, reversible error in the giving of an instruction is not dependent upon its being mandatory. Further, notwithstanding, contentions to the contrary, appellee’s Instruction No. 10 contains all the' characteristics of-a mandatory instruction. Vance v. Wells (1959), 129 Ind. App. 659, 159 N. E. 2d 586 cited by appellee.