Callahan, Admr. v. New York Central R. Co. , 134 Ind. App. 232 ( 1962 )

Cooper, J.

This is an appeal from the Putnam Circuit Court wherein the appellant, as an administrator, brought an action alleging the negligence of the appellee herein in the alleged wrongful death of one Harry A. Patterson.

To the plaintiff’s amended complaint, the defendant appellee filed its answer, including a second paragraph of answer, alleging that the sole, proximate cause of the collision involved was caused by the negligence of one Kendall Hooker, driver of the vehicle alleged to have been struck.

The cause was submitted to a jury, and the jury found in favor of the defendant. Within the proper time, the appellant filed his motion for a new trial, the same being overruled. This appeal followed.

The appellant’s assigned error is the court erred in overruling appellant’s motion for a new trial.

Because we have determined the trial court erred in giving an instruction to which the appellant made a proper objection, we need not discuss other specifications of error averred in appellant’s motion for a new trial. Pub. Ser. Comm. of Ind. v. C., I. and L. Railway Co. (1956), 235 Ind. 394, 399, 132 N. E. 2d 698; Tribune-Star Publ. Co. v. Fortwendle (1953) (T. D. 1954), 124 Ind. App. 618, 115 N. E. 2d 215; Flowers v. State (1956), 236 Ind. 151, 139 N. E. 2d 185.

It appears from the record that the trial court gave appellee’s tendered instruction #17 over the written objection of the appellant. This is specified as error in the appellant’s motion for a new trial.

It appears said instruction told the jury:

“If you find by a preponderance of all of the evidence that the death of plaintiff’s decedent was the result of a collision between a motor vehicle in which plaintiff’s decedent was riding and a train operated by defendant, the fact alone, though inviting your sympathy, shall not entitle plaintiff to a verdict, and unless you find by a preponderance of all of the evidence in this case that such death was proximately caused by negligence on the part of the defendant, as alleged in plaintiff’s amended complaint, without negligence on the part of plaintiffs decedent, your verdict. must be for the defendant.” (Our emphasis)

Thus, it is apparent that the instruction is mandatory and is also peremptory in effect. It unequivocally tells the jury that its verdict “must be” for the appellee “unless” the jury finds that (1) death was proximately caused by the appellee’s negligence, (2) without negligence on the part of the decedent.

Under this instruction the jury was not permitted to find for the appellant even though it should find that the appellee’s negligence was the proximate cause of the decedent’s death unless it also found that the decedent was without negligence so that whether the decedent’s negligence contributed in any way to the fatal occurrence is not a fact required to be found by the jury. Under the instruction, as given, it was sufficient to defeat recovery by the appellant if the decedent was in some manner negligent, regardless of whether such negligence proximately or otherwise contributed to the collision resulting in the appellant’s death.

It is clear that said instruction was harmful and prejudicial to the appellant. Notwithstanding the evidence may have established the negligence of appellee and that such negligence was the proximate cause of the collision and the consequent death of decedent, yet if there was evidence that appellant’s decedent was guilty of negligence in some way, manner or particular, whether or not such negligence contributed in any way to the fatal occurrence, appellant by the instruction foreclosed any opportunity of a favorable verdict by the jury. It appears the instruction omitted the element of proximate cause as applied to negligence of the decedent. It is our opinion this instruction is erroneous, and since it is mandatory, it cannot be cured by other instructions. Nepsha v. Wozniak (1950), 120 Ind. App. 362, 366, 92 N. E. 2d 734; Nickey v. Steuder (1905), 164 Ind. 189, 195, point 7, 73 N. E. 117; Holliday & Wyon Co. v. O’Donnell (1913), 54 Ind. App. 95, 104, points 8 and 9, 101 N. E. 642; Taylor v. Fitzpatrick (1956), 235 Ind. 238, 246, 132 N. E. 2d 919.

By reason of what we have heretofore stated, judgment is reversed and cause remanded, with instructions to sustain appellant’s motion for a new trial.

Ax, J., Myers, J., Ryan, C. J., concur.