Rhinebarger v. Mummert

362 N.E.2d 184, 173 Ind. App. 34, 1977 Ind. App. LEXIS 820

• Court: Indiana Court of Appeals
• Decided: April 28, 1977
• Docket: 2-975A240
• Status: Published

Opinions

White, J.

The appellants (Rhinebargers) sued the ap-pellee (Mummert) for damages for personal injuries to both, allegedly the result of an automobile collision. A jury found for Mummert. Rhinebargers argue that the trial court erred in giving a seat belt instruction, and that the verdict was contrary to law.

For error in giving the instruction, we reverse.

Virtually all the evidence concerning the accident is undisputed. The street involved is three lanes wide, two southbound and one northbound, and passes under a railroad north of the point of collision. The Rhinebargers’ car was stopped in the inside southbound lane behind a vehicle waiting to make a left turn. Mummert’s southbound car hit the rear of Rhine-bargers’ because Mummert’s attention had been diverted by a truck stopped in the northbound lane while its driver stood on the fender attempting to determine whether his truck would clear the overpass. Both Franklin Rhinebarger, who was driving, and his wife, Bette Rhinebarger, sitting beside him, hit the sun visors. Neithér was wearing a seat belt though the car was equipped with one for each.

There is some dispute as to the extent of injury sustained by the Rhinebargers. There evidence indicates permanent injury; Mummert’s suggests slight injury at worst. There is apparently no dispute that some “whiplash” occurred and that some medical expense resulted.

The trial court gave the following final instruction tendered by Mummert:

“I instruct you that there is evidence in this case that the plaintiff failed to use an available seat belt. If you find from the facts in this case that the injury or injuries of which plaintiff complains could have been avoided by the use of an available seat belt, I instruct you that you may take such facts into consideration in your determination of whether or not the plaintiff was either guilty of contributory negligence or incurring the risk of injury by such failure.”¹

The only evidence suggesting possible avoidance of injury had seat belts been worn was elicited during the cross-examination of one Robert Kerns, a police officer who investigated the accident and was called as a witness by Rhinebargers, apparently to testify as to Mummert’s on-the-scene admissions:

“Q. And you say they [seat belts] evidently were not [being used], why do you make that answer to that question?

“A. Well I feel that the type of seat belt in the car would . have prevented any type of whipping; being hit.

“Q. When you say whipping, are you referring to whip lash injury?

“A. Yes sir.

“Q. The type, of accident that occurred was in fact a rear end accident, is that correct?

“A. Yes sir.

“Q. In which the defendant Mr. Mummert’s car struck the vehicle being operated by Mr. Rhinebarger?

“A. Yes sir.

“Q. Is it your testimony then that the seat belt and harness would have prevented the type of injury which Mrs. Rhinebarger and Mr. Rhineberger [sic], in the nature of the whip lash?

“A. In my opinion yes.

“Witness excused.”

Birdsong v. ITT Continental Baking Company (1974), 160 Ind. App. 411, 312 N.E.2d 104, 108, held it reversible error to give an instruction which permitted the jury to find that plaintiff’s failure to use a seat belt was contributory negligence and to not award damages for injuries thereby caused. Among the reasons was “insufficient evidence ... to permit the application of such a doctrine”. Gibson v. Henninger (1976), 170 Ind. App. 55, 350 N.E.2d 631, 634, held a seat belt instruction was properly refused because “[t]here was no evidence that had [plaintiff] been ‘buckled up’ . . . she would not have . . . sustained injury.” See also: Kavanagh v. Butorac (1966), 140 Ind. App. 139, 221 N.E.2d 824. These cases have one common element, an indication that the evidnce was insufficient to support a finding that the failure to wear seat-belts caused or contributed to the injury.² In Kavanagh, supra (140 Ind. App. 139), the first and still the basic case, there was testimony by experts and some documentary evidence, not all of which was admitted, but the court said (140 Ind. App. 149) :

“We recognize possibility of the doctrine [of avoidable consequences] applying in some future date and in some matter where the circumstances are clearer than the instant case in showing that some part of the injury would not have occurred except for the fact that plaintiff failed to avoided the consequence of the tort by not fastening his seat belt.”

This case does not fit that description. The only evidence of any possible relationship between Rhinebargers’ injuries and their failure to wear seat belts is the opinion of a witness whose credentials as an expert are not demonstrated. He was not qualified as a safety expert nor was he shown to have extensive experience as a police officer. There is no indication of the extent or sources of his knowledge of Rhinebargers’ injuries. In short, the instruction is but an invitation to the jury to speculate freely on matters unsupported by evidence.

Nor is it possible to hold that the giving of the instruction was harmless error, inasmuch as the verdict may be either a finding that Mummert was not negligent or that Rhinebargers cannot recover because they were not wearing their seat belts.

The judgment is reversed and the cause remanded with instructions to grant Rhinebargers a new trial and for further proceedings not inconsistent with this opinion.

Sullivan, J., concurs; Buchanan, P.J., concurs with opinion.

1 . The was not given instructions defining either ¿‘contributory negligence” or “incurring the risk” since the record contains no such instructions. It does show that Mummert’s tendered instruction on incurring the risk was refused.

2 . It is for this reason only that we cite these cases, implying thereby neither agreement nor disagreement with any other principle expressed in either case.