Hayes Freight Lines, Inc. v. Oestricher

Draper, J. The appellee brought this action against the appellants to recover damages for personal injuries sustained by her as the result of an automobile accident. From an adverse verdict and judgment for $2,300 the appellants prosecute this appeal. They assign as error the overruling of their motion for new trial which asserts error, among other things, in the giving and refusal of certain instructions. The appellee’s complaint alleges that she was riding in an automible being driven southward on a certain public highway at 8:40 P. M. on the day of the accident, and that the appellants were then and there operating three trucks and trailers northward along the same highway. It is alleged that the trucks and trailers were being negligently operated in that they were being driven with bright and blinding lights; on a part of the highway reserved for southbound traffic; at such high speed that the trailers swayed from side to side and over on the part of the road reserved for southbound traffic, so as to obstruct the use of the same for southbound vehicles; and that they were following each other too closely, to-wit: less than 150 feet apart. It is then averred that the collision producing appellee’s injuries occurred as a result of each of the enumerated acts of negligence. Among the instructions given by the court was the following: “The plaintiff charges in her complaint herein that at the time and place of her injuries complained of said defendants were operating three certain trucks and trailers northward along high* way 57 and that at the same time the plaintiff *146 was riding in an automobile being operated southward along said Highway 57; that said defendants carelessly and negligently operated said trucks, on meeting the automobile in which plaintiff was riding, as aforesaid, at such a high rate of speed that the trailers thereof swayed from side to side and over onto the half of the highway provided for southbound traffic so as to obstruct the use of same by southbound vehicles and that as a result thereof the automobile in which plaintiff was riding came into contact and collision with one or more of said trucks or trailers thereby inflicting the injuries upon plaintiff of which she complains. “The court further instructs you that if you find from a fair preponderance of the evidence that said defendants, or any of them, were guilty of this act of negligence, and that plaintiff was injured as a proximate result thereof, all substantially as charged in plaintiff’s complaint herein, and that plaintiff herself was not guilty of any act of negligence which contributed proximately to her said injuries, then under said circumstances your verdict should be in favor of the plaintiff and against the defendant or defendants, if any, whom you find to have been guilty of such act of negligence.” This instruction was objected to by the appellants on the ground that no evidence had been introduced in the trial of the case, sustaining and supporting the act of negligence alleged in appellee’s complaint and set forth in this instruction. To support their objection the appellants now insist that no evidence was introduced which would justify the giving of the instruction. The appellee undertakes to meet appellants’ contention by the assertion that evidence was introduced and given at the trial which proved or tended to prove, and was sufficient to prove, the act of negligence in question. We have diligently searched the briefs and transcript of the evidence in this case, ánd nowhere can we find any evidence whatever which would in any way, directly *147 or inferentially establish or tend to establish the factual situation upon which this instruction is based. Our books are full of cases which hold that instructions should be relevant to the issues and pertinent to the evidence, and if' an instruction is given concerning a fact or set of facts to which no evidence has been adduced, it will be reversible error unless it clearly appears that the party affected was not harmed thereby. We cite only the following: Cleveland, etc., R. Co. v. Case (1910), 174 Ind. 369, 91 N. E. 238; Chicago & Eastern Illinois Ry. Co. v. Whipking (1933), 96 Ind. App. 167, 170 N. E. 548; Bachus, Admx. v. Ronnebaum (1934), 98 Ind. App. 603, 186 N. E. 386; see also Loeser v. Simpson (1942), 219 Ind. 572, 39 N. E. (2d) 945. Since the case falls far short of being one in which it clearly appears that the party affected was not harmed by this erroneous instruction, the giving of it constitutes reversible error. It is unnecessary to discuss other alleged errors, for if such there were, they will not likely again occur on a retrial of this cause. Judgment reversed and cause remanded with instructions to sustain appellants’ motion for new trial. Note. — Reported in 66 N. E. (2d) 612.