*1 Henry Peggy Calusa John McKeown Transport, Inc. & K C Rehearing January 27, 1977. denied 3-974A164. Filed [No. 29,1977.] June March Transfer denied *2 Lysohir, Alexander Lysohir Thomas Singer, H. Singer, Bend, appellees. of South for Kalamaros,
Edward N. Edward N. Associates, Kalamaros & Bend, appellees. .South brought J. McKeown injuries Garrard, suit for received in granted an automobile collision. judgment The court on the evidence, Procedure, Indiana Rules of Trial against Rule upon charging McKeown count wilful and wanton miscon- by Calusa, duct the driver of the jury other vehicle. The re- for the turned verdict asserting defendants the count negligence. appeal
On asserts on the evidence was granted improperly regarding his claim of wilful and wanton misconduct, refusing requested the court erred Secondly, regarding instruction wilful misconduct. and wanton by assigns given regarding he error in court an instruction statute, applicable 9-4-1-75(0, IC to motor vehicle making drivers left-hand We affirm. turns. driving tractor evidence disclosed that Calusa was High- belonging Transport
trailer to C & K westbound U.S. way highway. approached inter- 20, a four lane As Calusa light Highway con- section Indiana the traffic which green for traffic on U.S. 20. trolled intersection turned Seconds later collided with an automobile driven Calusa attempting from McKeown, turn left eastbound which was argues there was 149. McKeown U.S. 20 onto northbound Ind. permit jury infer Calusa sufficient evidence to attempted time to have turn in sufficient McKeown’s observed jury should have he the collision. asserts avoided whether Calusa’s conduct was permitted determine been any contributory *3 of to the bar wilful wanton so as overcome or negligence. Review,
I. Standard of dealing are judgment on evidence with Indiana cases language However, em in the results reached. consistent articulating con of reivew is somewhat the standard ployed in Compare, e.g., apparently Court fusing inconsistent.1 and stem, appears part, to in from our devotion 1. at least The confusion phraseology. value.” These terms phrase is “substantial of The familiar to famiilar forms analyzed probative were in Vonville v. of evidence 187, 759, App. 207-8, (1948), 77 N.E.2d Dexter 118 Ind. 760: opinion original not in our because refer to this evidence “We did probative regard value to we not it as substantial evidence with did By support appellee in is on this case. substantial the burden which aas reasonable mind such relevant evidence evidence we mean support a accept to Edison conclusion. Consolidated as sufficient Board, 1938, Company U.S. Relations York v. Labor 305 of New National 206, 126, 140; Wigmore 229, 230, 9 197, 59 83 L.Ed. S.Ct. By Ed., 2494, p. probative we Evidence, mean evidence 3rd value § proof quality having ‘carrying of fitness to induce and conviction.’ Commonwealth, 1932, 257, 521, Ky. 245 53 522.” S.W.2d Carter v. probative value, use term has of additional if evidence Yet weight appear either or constitute to connote “substantial” would weigh redundancy. may not court the evidence on TR. 50 Since prior- superfluous. is For author’s motion, of “substantial” the use 4 Appeals
of Supreme opinions and Court in Miller v. Griesel (1973), App., 463, Ind. (1974), 297 N.E.2d 261 transferred Ind. 308 N.E.2d with those in Mamula Ford Motor App. 179, 849; and Vernon Fire Sharp Ins. & Cas. Co. clearly suggest,
What the however, cases is the court is indulge not free to weighing in the fact finder’s function of resolving credibility evidence and determinations grant on the evidence. On the other
hand, probative unless there is some evidence of (i.e., value carrying quality proof having fitness conviction) upon induce claim, each element of the properly granted. motion is
Evidence, course, is direct or circumstantial. There is normally difficulty determining little whether direct evi- probative dence of value has been adduced an issue. problem arises in the area of circumstantial evidence. If the question ultimate fact in exists as a reasonable inference from evidence, circumstantial a TR. 50 motion should be denied. Conversely, if the circumstantial evidence fails create a reasonable fact, inference merely ultimate but leaves possibility open its surmise, conjecture existence speculation, then probative there is no evidence value as fact, to that ultimate granted. and the motion As Judge Mamula, Buchanan stated in the trick to tell the difference, depends upon and the answer the facts circum- given stances of a case.
II. and Wanton Misconduct Wilful *4 The rule is well contributory negligence established that injuries is no wilfully defense when are inflicted. Steinmetz v. phr.ase, Burger Brands, analysis use of the see v. (1976), National Inc. 168 Ind. App. 289, 342 N.E.2d 870. For a similar see Mamula v. Ford Motor Co. 150 (1971), App. 179, Ind. 275 849.
5
Kelly
Moreover,
(1880),
Ind. 442.
conduct
72
evinc
ing
degree
culpability
preclude
a lesser
will also
variously
the defense. Such conduct has been
labeled
wilfulness,”
“constructive
“wanton” or even
Parker
“reckless.”
Pennsylvania
(1893),
673,
504;
Co.
134 Ind.
34 N.E.
Bran
v.
nen
115,
v. Kokomo
(1888),
G. & J. G.R. Co.
Ind.
17
115
202;
Chicago,
N.E.
Palmer
(1887),
St. L.
P. R. Co.
&
112
v.
250,
Ind.
See, also,
(1944),
Constructive wilfulness be found in the commission of an disregard intentional act which is done with reckless probable consequence
the natural
injury
to a
person
known
under the
known to the
circumstances
actor at the
See, Brannen, supra,
time.2
and Brooks
Pittsburgh
v.
Ry.
C.C.
L.
(1902),
62,
& St.
Co.
Ind.
158
62
694;
N.E.
Conner
(1896),
v. Citizens St. R. Co.
Ind.
146
662; Pittsburgh
N.E.
Ry.
45
C.C.
L.
& St.
Ferrell
(1906),
App. 515,
Ind.
It however, also from an omission or failure act. Under liability may such predicated upon circumstances the actor’s failure to alter or cease an action under his control when he has actual of the probable natural and con- sequence injury opportunity and of his to avoid the risk. See, Parker, supra; Palmer, supra; Cleveland C.C. L. & St. Ry. (1898), Co. v. Miller 445; 149 Ind. Lake N.E. Erie & W. R. Co. v. App. 655, 43 N.E. Bradford law,
In modern tort
claims of constructive
based
wilfulness
primary opinions
requirement
dwell
of actual knowl-
edge
person’s position
probable injury.
The existence of the
particular person
known,
merely
must be
rather
than
an awareness of
general
a
passenger
injury.
class who
suffer
guest
Some cases under
imply
requirement
statute
a lesser
knowledge.
of actual
While
presence
result from the
attending
inferences
of an invited
guest, may represent
it
some difference in
guest
the standard under Compare
act.
the cases cited with
Clouse
Peden
upon been to act have a failure concepts Both seek clear chance. doctrine of last legal plaintiff’s consequences of a own the to avoid negligence.
Judge as re- last clear chance Hoffman has summarized quiring: “1) knowledge plaintiff; had actual of the The defendant plaintiff’s perilous position; 2) 3) The defendant knew of physical The control over the instrumen- defendant had
tality
through
opportunity
exercise
plaintiff
and
had
last
injury;
4)
of
The
reasonable care to avoid the
and
notwithstanding his own
danger,
oblivious
his own
was
City
contributory negligence.” (citations omitted) National
278, 282,
Lines,
(1969),
App.
Inc. v. Hurst
Ind.
250
145
507,
510.
plaintiff,
requirement
final
is also satisfied where
although
himself
position,
aware
to extricate
of his
is unable
App.
peril. See, Stallings
(1965),
from the
Dick
139 Ind.
v.
118,
While it be that in to assess viewing essentially coin from these situations are the same we sides, employed rationales different have different doctrines Prosser, Compare, differing which lead to conclusions. 66, 427-8; Ed.) pp. Law and (4th p. Torts § § of Krenzer v. Pittsburgh Ry. (1898), C.C. St. L. Co. 151 587, N.E. 52 generally a doctrine
Indiana has deemed last clear chance applicable of causation. It is said that when defendant’s negligence” proxi- “final is to be considered sole Broughton See, injury. Bates mate cause of the App. hand, cases are the other constructive wilfulness con On subjective establishing state mind cerned with defendant, i.e., that under the circumstances his merely negligence to act evidenced not but omission injured. willingness plaintiff The dis negligence constructive wilfulness and mere between tinction depends upon the actor’s state of mind. To focus presumption distinction cases have utilized the so-called self-preservation. presumed person capable It is that a ability will exercise normal to remove himself from perilous position self-preservation. due to motives Terre Haute, etc. R.R. Graham Ind. 239. A de presumption gauging fendant has the benefit of this actions. in the absence of part some on the plaintiff not, cannot, defendant will extri *6 himself, necessary cate the intent for constructive wilfulness Chicago not Palmer v. established. L. P. St. & R. Co. 250, 14 N.E. 70. Thus, given presence necessary elements, the of the other contributorily negligent plaintiff may recover from a de- under fendant last clear chance if in plaintiff the was fact danger oblivious or to his own was unable to extricate himself opportunity when the defendant had the “last” to avoid the injury. To recover for constructive wilfulness under similar only circumstances, plaintiff not must the have been unaware injury, or unable to avoid the but the evidence must establish defendant’s reasonably of facts imply sufficient to plaintiff knew that he would not extricate himself.
Turning us, to case before there was no evidence that intentionally (wilfully) injured Calusa judg- McKeown and on ment the evidence allegation. was correct toas that With respect charge to (constructive of wilfulness), wantonness points might to evidence from which it be inferred increased, maintained, that at Calusa least his established speed rate of at a time when he was aware of peril McKeown’s applied effectively. and have could his brakes reciting in detail the pointed to, recog- Without evidence we nize it have that been sufficient under the standard of appellate review to avoid a on the evidence. How- ever, error, any, if we hold was rendered harmless jury’s verdict. part of constituted Calusa
The same conduct on charging complaint. On the count basis for both counts jury proper under negligence, the issue was submitted setting of last clear chance. the doctrine forth instructions negligence claim jury found for Calusa on When necessarily chance, they clear on last despite the instruction finding on claim of constructive precluded for McKeown negligent they in the not first found Calusa wilfulness. If clearly culpable guilty the more act not instance, he was hand, the other to find that the same conduct. On based by contributory negligence, recovery barred was McKeown’s necessarily they have had to find that did not would Calusa clear chance. have the last jury plaintiff found to have for the they wantonness, i.e, wilfulness, constructive would
claim was aware McKeown’s had to determine Calusa have consequence probable position peril; the natural operation of truck was a collision with Mc- his Caiusa’s ; aware of at a time he was Calusa was when Keown that collision; his truck and could have avoided the control of was aware that McKeown was oblivious that Calusa if the peril or to extricate himself. Yet failure was unable the last clear chance was made on the that Calusa had find *7 no had actual McKeown’s basis that Calusa perilous position; of McKeown’s presence; he not know that did physical he not have control over the truck suf- or did that through injury an exercise reasonable ficient to avoid any preclude finding also care, determination would such Similarly, jury if the wilfulness. found constructive peril to neither oblivious nor to was unable McKeown himself, not be then Calusa could found to have extricate inability unawareness or other of McKeown's to save known required for constructive wilfulness. To be “know- as himself must exist. able” a fact complains
Finally, following final instruc- McKeown given by the court: tion you full statutes or in force and effect at instruct there was “I question of the laws the time of the accident in provided, part, follows: State of Indiana which as Turning left driv- 9-4-1-82 at intersection. —The [47-2027] intending
er .turn to a vehicle within intersection to an yield any approaching right-of-way left shall vehicle opposite intersection from the direction which is within the hazard, or close thereto an so as to constitute immediate signal driver, having yielded having given but said when and as so required may left act turn make such approaching inter- and the drivers of all other vehicles way right-of opposite yield section from said to the vehicle direction shall making the left turn. Required position of turn- 9'-4-l-75 method and vehicle [47-2020] intending ing at of a intersections. —The driver turn at an intersection shall do so as follows: Approach of the portion for a turn in that left shall made right roadway half line of the center nearest entering intersection, thereof and after left turn right shall be made so as to leave intersection to roadway being of the center line of the entered.” argues approaching in 9-4-1-75 to He that the reference roadway right portion half of the left turn “in that jury confusing misleading and to the line” nearest the center is not approaching the turn could manner of since McKeown’s contributing proximate of the collision. have been cause no out the more than set that the instruction does We note necessity jury instructions advised statute. Other contributory negli question of on the of causation why the instruc gence. one wonder while nothing form, given to indi there in this tion was jury a different or that it confused misled cate that given. it reached had not been Under have been verdict circumstances, has failed establish reversible such 513; Mason Baker error. Langford Development App. Town Old Affirmed. P.J., sepa- Staton,
Hoffman, concurs; concurs and -files J., opinion. rate *8 OPINION
CONCURRING
sustaining
concur. The trial court’s error
P. J.
I
Staton,
for
on the evidence was
the motion
harmless in
light
jury’s
appears to
The instruction
have
verdict.
evidence,
light
instruction,
been in the
needless
but
reversible error. McKeown
not dem-
it does not constitute
has
prejudiced
giving
he
how was
the instruc-
onstrated
tion.
Reported at
Note. — v. Homer Gilmore. A, Inc.
H & January Rehearing 3-476A81. Filed denied March [No. Transfer denied June 1977.] Handlon, Hobart, appellant. Steven W. for Weiser, Gary, appellees. Lund & Plaintiff-appellant A, appeals Inc. H & from Hoffman, J. previous court decision which set aside judg- a trial default against defendant-appellee ment entered Homer Gilmore for failing pleading. responsive file appeal issue raised on