Kraning v. Bloxson, Admx.

ON PETITION FOR REHEARING. The appellant has filed a petition for a rehearing of this cause in which he renews his contention with much force and ingenuity, that the trial court committed reversible error in giving to the jury instructions Nos. 8, 9, 14, 15, 17, and 19 tendered by the appellee, and in refusing to give to the jury instruction No. 1, tendered by the appellant.

We have again carefully examined the record. It shows that the appellant tendered twenty-eight instructions of which all but Nos. 1 and 2 were given to the jury; that the appellee tendered twenty-two instructions of which all but Nos. 1 and 21 were given to the jury, and the court of its own motion gave eight instructions to the jury.

Appellee's instruction No. 8 of which appellant complains and which we did not discuss in detail in the original opinion informed the jury that if, because of the negligence 10, 11. of the appellant, appellee's decedent was suddenly and unexpectedly placed in a position of great danger, this would be a proper circumstance for it to consider in respect to the decedent's conduct, that the law does not expect the same coolness and circumspection from a person under such circumstances as in those instances where he has time and opportunity to think and deliberate as to the best means to avoid the impending accident, and that if the jury found that the decedent was thus placed in such apparent danger, by the negligence of the appellant, and acted as an ordinarily prudent person would do in the same situation, then it would not be warranted in finding the decedent guilty of negligence, though he would not have received the injuries if he had not so acted. The appellant insists that this instruction directs the jury to find against him on the question of contributory negligence, even though the decedent was guilty of negligence in placing himself in a position of peril in the first instance, that the reason for the rule does not apply under such a state of facts, and that the instruction is mandatory. While the language in which this instruction is couched is inept, it is not subject to the criticism directed against it by appellant. Whether or not the decedent was guilty of negligence in placing himself in the perilous position in the first instance (if he in fact did so) and whether or not after finding himself in a perilous position (if he in fact was in such position) he acted as a reasonable and prudent person would do under similar circumstances, were facts to be submitted to the jury for its determination. The instruction was not mandatory, nor do we think it invaded the province of the jury and when considered together with the other instructions given to the jury, the giving of this instruction was not reversible error. McIntyre v. Orner (1906), 166 Ind. 57, 76 N.E. 750, 4 L.R.A. (n.s.) 1130;Cleveland etc., Co. v. Miles (1904), 162 Ind. 646, 70 N.E. 985; Stoy v. Louisville etc., Co. (1903), 160 Ind. 144, 66 N.E. 615. But appellant cannot consistently complain of appellee's instruction No. 8, for on request of appellant, the court gave to the jury his instruction No. 25, which instruction informed the jury that the same rule of law announced in appellee's instruction No. 8 likewise applied to appellant.

Appellant has seen fit to segregate from the balance of the language contained in our original opinion and to criticize this statement to wit: In the absence of any regulation to the contrary, the general rule of law for the guidance of automobilists at street intersections is that the one reaching the street intersection first has the right of way.

Appellant admits that this is a correct statement of the law as it existed prior to the enactment of Sec. 47-549 Burns 1933, Sec. 11182 Baldwin's Ind. St. 1934, but in effect says that we have ignored that section of the motor vehicle law as construed by this court in the cases of Blasengym v. General, etc., Co. (1929), 89 Ind. App. 524, 165 N.E. 262 (Transfer to Supreme Court denied July 3, 1929), and Dinnen v. Fries (1931),93 Ind. App. 190, 171 N.E. 665, (Transfer to Supreme Court denied October 13, 1931).

Taken in connection with the balance of the language contained in the original opinion, the above quoted excerpt does not overrule or modify the law as announced in the two cases last above cited, which we approve and adhere to, but it is in full accord and harmony therewith.

Appellee's instructions Nos. 9, 14, 15, 17, and 19, of which appellant complains, did not violate any of the principles of law contained in the Blasengym and Dinnen cases, supra, but were in full accord with them.

The record before us shows that the merits of this cause were fairly tried and determined in the lower court. Under such circumstances, errors in giving or refusing to give 12. instructions, conceding that there were such, are harmless. Pittsburgh, etc., Co. v. Rushton (1929),90 Ind. App. 227, 148 N.E. 337, (Transfer to Supreme Court denied November 13, 1929), and authorities there cited. Sec. 2-3231 Burns 1933, Sec. 505 Baldwin's Ind. St. 1934.

Rehearing denied.