Davison v. Williams ( 1968 )

Cooper, J.

— This appeal is from an action below wherein the Appellee sought to recover damages in two paragraphs of complaint for personal injuries and property damages sustained by him in an automobile accident. The Appellee’s complaint alleged that he had stopped his ear on a three lane highway to permit a train to pass; that the highway was dry; that the weather was clear and that the Appellant drove his automobile into the rear of the Appellee’s automobile whereby the Appellee suffered personal injury and property damage. The Appellant answered in two paragraphs of general denial.

After the issues were closed, the trial was had by jury which returned a verdict for the Appellee in the amount of seventy five hundred dollars. Judgment was entered on the verdict, and subsequently the Appellant filed his motion for a new trial, which said motion was overruled. The error assigned on appeal is the overruling of the motion for new trial.

The Appellant’s motion for a new trial, omitting the caption and signature, reads as follows:

“The defendant in the above-entitled cause moves the court for a new trial herein on each of the following grounds;

“1. The damages assessed are excessive.

“2. Error in the assessment of the amount of recovery in this, that the amount is too large.

“3. The verdict of the jury is not sustained by sufficient evidence.

“4. The verdict of the jury is contrary to law.

“5. Error of law occurring at the trial, as follows:

“A. The court errored in refusing to give to the jury the request of the defendant each of the written instructions tendered and requested by the defendant and numbered six and eight.

“B. The court errored in giving to the jury at the request of the plaintiff each of the plaintiff’s instructions numbered five, six and seven and to the giving of each of which instructions the defendant duly objected to each of said instructions after the court had indicated the instructions it would give to the jury.”

The Appellant, as noted, first charges that the damages assessed are excessive. To warrant a reversal on this ground, it must appear that the verdict was so grossly and outrageously excessive as to induce the belief that it was the result of prejudice, partiality or corruption. Larkins v. Kohlmeyer (1950), 229 Ind. 391, 403, 98 N. E. 2d 896; Swallow Coach Lines, Inc., et al., v. Cosgrove (1938), 214 Ind. 532, 15 N. E. 2d 92. The record which is now before us would not justify a reversal on that basis.

The Appellant’s second alleged error in said motion for new trial is that there was error in the assessment of the amount of recovery, in that the amount was too large. The Appellant does not set out the jury’s verdict or verdicts in his brief, but only sets out what appears to be the combined amount of judgment rendered on the verdict or verdicts as the case may have been.

Without searching the record, we cannot determine from the Appellant’s brief the amounts of the respective verdicts of the jury as to personal injuries or as to property damages. We are not authorized to search the records to reverse a judgment. Hayes v. Pennick (1965), 137 Ind. App. 55, 204 N. E. 2d 882, 4 Ind. Dec. 697, and authorities cited therein.

The Appellant’s third and fourth assignments in his motion for new trial which are, in substance, that the verdict is contrary to law and that the verdict is not sustained by sufficient evidence will be discussed together.

It appears that the Appellant herein in his argument is attempting to assert a defense of justification under his answers in general denial. I am of the opinion that the better practice would be to plead such a defense specially by an affirmative paragraph of answer. The reason is, the general rule follows the maxim, in the law, that the law looks to the proximate and not to the remote causes of injury. In Pomeroy, Remedies, third edition, Sec. 705, at page 767, in a discussion on actions for torts, I find the following statement: “nor can any defense of justification be proved unless specially pleaded.” See also: Hawke, et al. v. Maus (1967), 141 Ind. App. 126, 226 N. E. 2d 713, 716, 10 Ind. Dec. 491.

When the sufficiency of the evidence is questioned on appeal, this court does not weigh the evidence, but reviews the record to see if there is any evidence or any reasonable or logical inference which may be drawn from the evidence, which if believed by the jury, would sustain the verdict. Gamble, et al. v. Lewis (1949), 227 Ind. 455, 460, 85 N. E. 2d 629; Indiana Ins. Co. v. Handlon (1940), 216 Ind. 442, 24 N. E. 2d 1003.

Likewise the Appellant’s charge that the verdict of the jury is contrary to law requires us to apply the rule of law applicable. Our Supreme Court in the case of Pokraka, et al. v. Lummus Co. (1952), 230 Ind. 523, 532, 104 N. E. 2d 669, states the rule, in substance, that we may consider only the evidence most favorable to the Appellee in a cause. It is only where the evidence is without conflict and can lead to but one conclusion and the trial court or jury has reached an opposite conclusion, that the decision of the trial court or the verdict of the jury will be set aside on the grounds that it is contrary to law. See also, Hinds, Executor, of estate of Sickels, deceased v. McNair, et al. (1955), 235 Ind. 34, 129 N. E. 2d 553; A. S. C. Corporation v. First Nat’l. Bank of Elwood, et al. (1960), 241 Ind. 19, 23, 167 N. E. 2d 460, and authorities cited therein.

By reason of what we have stated above, we cannot say as a matter of law that the verdict of the jury is not sustained by sufficient evidence or is contrary to law.

The Appellant’s assigned error number 5A is the refusal of the trial court to give certain instructions requested by the Appellant, reading as follows:

“DEFENDANT’S INSTRUCTION NO. 6,

“A party suddenly in peril is not required to do that which after the peril is ended it is seen he might have done and escaped; the law makes allowances for lack of coolness in judgment incident to such peril. A person is not expected to exercise the coolness and forethought that an uninterested bystander might show; nor is he required to take the same precaution which it might appear afterwards might have avoided the injury. In this case if you find that Henry Davison was driving his car in a proper, prudent and careful manner and suddenly found that his foot brake had failed, the fact that he did not use his emergency brake does not necessarily constitute negligence upon his part unless you further find that he failed to exercise such care and diligence as a reasonably prudent and capable driver of an automobile would use under the unusual circumstances.”

“DEFENDANT’S INSTRUCTION NO. 8,

“A person who is driving an automobile on the public highways is not bound to anticipate or foresee any mechanical failure on the part of his automobile unless he actually knew of the defective condition or could have discovered the same in the exercise of reasonable care. Therefore, if you find that the sole proximate cause of the collision in this case was caused by a failure of the brakes on the automobile of the defendant, and if you further find that the defendant did not know that the brakes on his automobile were defective or that he could not have discovered the defective condition by a reasonably careful inspection, your verdict must be for the defendant.”

Since the Appellant herein has not deemed it necessary to set forth in his brief all the instructions given by the trial court, we are unable to say as a matter of law that the court erred in refusing to give the above instructions, as those requested instructions may have been covered by other instructions given by the Court. We will not search the record to reverse. Likewise this cause comes to us on appeal with the presumption that the cause was fairly tried, that the jury was properly instructed, and that the correct result was reached. The burden is always upon the Appellant to overthrow that presumption. A. S. C. Corporation v. First National Bank, etc., supra; Souerdike v. State of Indiana, (1952), 231 Ind. 204, 108 N. E. 2d 136, and other authorities cited therein.

It is not error to refuse to give a tendered instruction where the subject matter contained therein is fully covered or covered in substance by other instructions given. Greenwalt v. State of Indiana (1965), 246 Ind. 608, 209 N. E. 2d 254; Byrd v. State of Indiana (1965), 246 Ind. 255, 204 N. E. 2d 651; Beatty v. State of Indiana (1963), 244 Ind. 598, 603, 194 N. E. 2d 727. Also the instructions given in a case must be considered as a whole and with reference to each other, and not as isolated individual instructions. Carter, et al. v. Aetna Life Insurance Co, et al. (1940), 217 Ind. 282, 27 N. E. 2d 75; Bain, Administratrix v. Mattmiller (1938), 213 Ind. 549, 13 N. E. 2d 712; City of Shelbyville v. Morton, etc. (1965), 138 Ind. App. 460, 208 N. E. 2d 705.

Plaintiff-Appellee’s instructions numbered 5, 6, and 7 which were given by the court and objected to by the Appellant read as follows:

“PLAINTIFF’S INSTRUCTION 5.

“There was at the time of the accident in controversy a statute of the State of Indiana in full force and effect providing that ‘Every motor vehicle other than a motorcycle or motor-driven cycle when operated upon a highway shall be equipped with brakes adequate to control the movement of and to stop and hold such vehicle, including two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels. If these two separate means of applying the brakes are .connected in any way they shall be so constructed that failure of any one part of the mechanism shall not leave the motor vehicle without brakes on at least two wheels.’ If you find from the evidence that at the time of the accident in controversy the defendant was operating upon a public highway an automobile that was not equipped with brakes adequate to control its movement and to stop and hold it, including two separate means of applying such brakes, he was guilty of negligence as a matter of law and if as the proximate result thereof, the plaintiff was injured while in the exercise of reasonable care himself, he is entitled to recover in this action such damages as you may find he has thereby sustained, but not to exceed the amount prayed for in the plaintiff’s complaint.”

“PLAINTIFF’S INSTRUCTION 6.

“There was also at the time of the accident in controversy, a statute of the State of Indiana in full force and effect providing that ‘All brakes shall be maintained in good working order.’ If you find from the evidence that at the time of the accident in controversy, the defendant was operating upon a public highway an automobile with brakes which were not maintained in good working order he was guilty of negligence as a matter of law and if as the proximate result thereof the plaintiff was injured while in the exercise of reasonable care himself, he is entitled to recover in this action such damages as you may find he has thereby sustained.”

“PLAINTIFF’S INSTRUCTION 7.

“There was also at the time of the accident in controversy a statute of the State of Indiana in full force and effect providing that, ‘Every motor vehicle or combination of vehicles, at all times and under all conditions of loading, shall, upon application of the service (foot) brake, be capable of decelerating and developing a braking force equivalent to such deceleration according to the minimum requirements set forth herein and also of stopping within the distances set forth herein. Passenger vehicles, not including busses, stopping distance in feet, 25; deceleration in feet per second, 17, and equivalent braking force in percentage of vehicle or combination weight, 53%. Compliance with standards set forth herein shall be determined either (1) by actual road tests conducted on a substantially level (not to exceed a plus or minus one per cent grade), dry, smooth, hard-surfaced road that is. free from loose material, and with stopping distance measured from the actual instant breaking controls are moved and from an initial speed of 20 miles per hour, or (2) by suitable mechanical tests in a testing lane which recreates such same conditions, or (3) a combination of both methods.’ If you find from the evidence that at the time of the accident in controversy, the defendant was operating upon a public highway an automobile that was not equipped with brakes meeting the requirements of the said statute, he was guilty of negligence as a matter of law and if as the proximate result thereof the plaintiff was injured while in the exercise of reasonable care himself, he is entitled to recover in this action such damages as you may find he has thereby sustained.”

The Appellant’s objection to the three foregoing instructions is as follows:

“The defendant objects to the giving of plaintiff’s Instruction Number five (six and seven) for the instruction is mandatory, and that it omits the element of defense of a mechanical failure of brakes, and that if the defense of mechanical brakes, failure of brakes, was the sole proximate cause, it would be a valid defense and therefore excusable.”

Although the Appellant’s objection is ambiguous and not clear, we presume that he meant that the instructions complained of did not contain the necessary elements relating to justification as a defense to the violation of the statutes set out in said instructions. We do not believe such a position is meritorious, because the Appellant was required, under our case law, if he desired a fuller statement of the law to be made, to have tendered such instructions as would have correctly expressed a more complete statement of the law. City of Terre Haute v. Deckard (1962), 243 Ind. 289, 183 N. E. 2d 815. See also cases in Sec. 55.18 Lowe’s Revision of Works’ Indiana Practice.

In Wiltrout, Indiana Practice, Sec. 1400, (5) Vol. 2, page 342, we also find the following statement: “A party cannot complain of an instruction given by the court which, although incomplete, is a correct statement of the law so far as it goes, where such party did not tender a more full instruction on the subject.” See cases collected under citation number 14, on page 352.

For all of the foregoing reasons, the judgment of the court below is affirmed.

Carson, C. J., Prime, J. concur.

Faulconer, J., dissents with opinion.