Easley v. Williams , 163 Ind. App. 38 ( 1975 )

Robertson, P.J.

This is an appeal by defendants-appellants (Easley and Harmless) from the granting of a new trial on a motion to correct errors filed by plaintiff-appellee (Williams).

The sole issue before this court is whether the trial court erred in granting that new trial. We hold that there is no error.¹

The facts from which this suit arose are as follows:

Williams lived on the northeast corner of Jefferson and Broadway in Danville, Indiana. Howard and Betty Harmless owned and operated a laundromat on the east side of Jefferson Street north of and adjacent to Williams’ home. Harmless had constructed a concrete parking area across the entire frontage of his lot extending to the edge of the sidewalk. Between this concrete and Jefferson, a five (5) feet wide asphalt apron was installed, eliminating the usual sidewalk in that area.

On the morning of January 12, 1972, Easley drove his pick-up truck up to the front of the laundromat, parking it wholly within the concrete parking area. Williams, carrying a purse and using a walking cane, left her house and proceeded north along the sidewalk toward the Harmless’ laundromat. She intended to walk north to Marion Street, cross over to the west side of Jefferson, and continue to her place of work.

As Williams approached the pick-up truck, she observed that the driver was in the truck. She could not recall at trial whether the truck was running or if the lights were on. She continued across the asphalt apron, reportedly within the imaginary extension of the sidewalk which abutted either side of the apron. Easley backed his truck, and Williams was struck, suffering injury to her leg.

Williams brought suit against both Easley and Harmless. In instructing the jury, the trial judge gave several instructions relating to the defense of contributory negligence and an instruction on the choice of ways doctrine.

A general verdict was rendered in favor of all the defendants. Williams filed her motion to correct errors. The trial judge sustained the motion and granted a new trial. The order specified the following reasons for granting the motion:

(1) Error in instructing the jury on the choice of ways doctrine since it was not applicable to the facts of the case.

(2) Error in giving several instructions on contributory negligence which were repetitious and over emphasized that issue.

Easley and Harmless contend that a new trial should not have been granted because no error was committed at trial in the giving of instructions. They argue that the choice of ways instruction was applicable to the facts of the case and that the several instructions on contributory negligence were not repetitious. Additionally, Harmless argues that the court erred in determining that the alleged errors affected the verdict as concerned him since no evidence supported a finding of negligence on his part.

In reviewing the decision of a trial court to grant a new trial, we must affirm if any of the reasons stated by the trial judge for taking that action are proper. Landers v. McComb Window and Door Co. (1969), 145 Ind. App. 38, 248 N.E.2d 358; Bailey v. Kain (1963), 135 Ind. App. 657, 192 N.E.2d 486.

As the first reason for granting a new trial, the trial judge stated that error was committed by giving a choice of ways instruction to the jury because that doctrine was not applicable to the facts of the case.

We agree that the instruction was improperly given.

Before an instruction is proper there must be sufficient evidence in the record to support that instruction. Moore v. Funk (1973), 155 Ind. App. 545, 293 N.E.2d 534.

The choice of ways doctrine is applicable only where there are alternative paths to choose and the path chosen involves a danger so great and apparent that a person of ordinary prudence would not have used that way under the circumstances. City of Mitchell v. Stevenson (1964), 136 Ind. App. 340, 201 N.E.2d 58; Wyler v. Lilly Varnish Co. (1969), 146 Ind. App. 91, 252 N.E.2d 824.

The present case presents no such situation. In the first place, it is doubtful that Williams was even aware that a choice of ways actually existed. She was on her accustomed way to work walking along a public sidewalk or extension of the sidewalk. Also, she was an elderly lady walking with assistance of a cane. The availability of a route which would require her to walk many feet out of her way, around the front of a truck, stepping up and down a step in the process is very questionable.

Moreover, the existence of alternate routes in itself does not make the choice of ways doctrine applicable. The path chosen must involve a danger so great and apparent that an ordinary person would not have chosen that way. From the facts of this case, it is clear that the trial judge was correct in ruling that the choice of ways doctrine was not applicable.

Secondly, the trial judge ruled that error had been committed by giving several instructions on contributory negligence which were repetitious and tended to over emphasize that particular issue.

As stated in Perry v. Goss (1970), 253 Ind. 603, 255 N.E.2d 923:

“Repetition to some extent in instructions is bound to occur, but that does not make them per se erroneous. It is where repetition occurs so often and so emphatically that it overly impresses the jury with some particular phase of the law or fact that it can be said that such instructions are to be condemned.” 255 N.E.2d at 926.

In all, six instructions were tendered by the defendants and given by the court concerning contributory negligence. Our reading of those instructions reveals that they were in fact repetitious each repeating, although in somewhat different language, the elements of contributory negligence. When those instructions are read in light of the instructions as a whole we agree that the issue of contributory negligence was unduly emphasized such that the giving of those instructions was error.

Finally, Harmless asserts that the new trial should not have been granted against them since no evidence supported a finding of negligence on their part. However, from the record in this case we are unable to say as a matter of law that no evidence was presented which tended to show negligence on the part of Harmless. The trial judge was correct in granting a new trial with respect to both appellants.

Judgment affirmed.

Lybrook, J., concur; Staton, J., dissents with opinion.

1 . Procedural problems in this appeal were resolved in favor of the defendants-appellants in Easley et al v. Williams (1974), Ind. App., 314 N.E.2d 105.