Before HASTINGS, Chief Judge, and CASTLE and SWYGERT, Circuit Judges.
Plaintiff, Armenna Ravellette, administratrix of the estate of Oren A. Ravellette, brought this suit based on diversity jurisdiction against defendant, Richard F. Smith, to recover damages for the wrongful death of plaintiff's husband, Oren A. Ravellette, allegedly caused by defendant's negligence. Defendant was the driver of an automobile which struck and killed decedent as he was directing a military convoy onto a highway near Morgantown, Indiana. A jury returned a verdict for defendant upon which the District Court entered judgment. This appeal followed.
On June 3, 1960 decedent, a maintenance sergeant in the Indiana National Guard, was a member of a military convoy proceeding from Terre Haute to Camp Atterbury, Indiana. At approximately 11:15 p.m. the convoy was detained due to a malfunction of one of the vehicles. At this point the convoy was heading east on a section of level paved highway which ran generally in an eastwest direction. While detained, the convoy vehicles were parked on the south berm of the roadway off of the pavement and in a line with an interval of from three to five feet between vehicles. None of the vehicles had clearance lights although their headlights were burning. Flares were carried in the convoy but none was used.
After surveying the situation, the commanding officer decided that the convoy should proceed to Camp Atterbury. The officer testified he told decedent to remain with the disabled vehicle to attempt to repair it and to "* * * see to it that the convoy gets back onto the highway. Direct the convoy back on the highway. Something of that nature."
Decedent stationed himself on the highway facing west in the westbound lane. He directed the convoy back onto the highway by moving a flashlight from right to left in the general area in front of his body. While decedent was so engaged, defendant approached the scene heading west at approximately thirty-five to forty miles per hour. He testified that he did not see any warning sign and did not see the flashlight; that after he had met two or three of the oncoming vehicles he was blinded by headlights angling toward him from the opposite side of the road; and that he applied his brakes, then saw decedent an instant before colliding with him. Decedent was removed to a hospital in Franklin, Indiana, where he was pronounced dead on arrival. An autopsy was subsequently performed at the request of the coroner at which time a blood sample was taken without the consent of decedent's family. An analysis of the sample disclosed a reading of 0.24 per cent blood alcohol. This amount of alcohol was testified to be sufficient to impair judgment in a person with physical characteristics similar to decedent's.
The errors asserted by plaintiff are the trial court's refusal to give certain of plaintiff's requested instructions and the giving of other instructions.
The objections pertaining to the instructions and requested instructions basically fall into three categories. Consequently, the instructions given or refused need not be discussed seriatim. The basic errors asserted are: (I) Decedent was not a pedestrian but an emergency worker*fn1 and consequently the trial judge should have instructed the jury on the standard of care required of an emergency worker rather than the standard required of an ordinary foot traveler on the highway. (II) Evidence of decedent's blood alcohol, secured from his dead body without the consent of his family, was improperly introduced and it was error to instruct the jury that they could take this evidence into consideration. (III) It was error to instruct the jury that if they found that the sole proximate cause of decedent's death was the failure of the Indiana National Guard or its personnel to exercise due care then they should find for defendant.
The cases cited by plaintiff as showing that the standard of care required of a pedestrian should not have been applied to decedent involved persons such as construction workmen or traffic officers who were required to be in the traveled portion of the highway in order to properly perform their duties. Typical is Isgro v. Plankinton Packing Co., 176 Wis. 507, 186 N.W. 606, 609, where the court referring to an injured construction laborer who was helping to relay pavement in the street said, "He occupied a different position with respect to the degree of care required by him than an ordinary traveler upon the highway * * * he was necessarily there in the performance and discharge of his duty."
The evidence in the instant case shows decedent was not necessarily required to be on the paved portion of the highway. His commanding officer testified that decedent was not ordered to stand on the pavement and that there was nothing in the prescribed or accepted method of bringing a convoy onto a highway which would require him to do so. The opposite or north berm of the highway was twenty-five feet wide and unoccupied. There is no evidence which infers that decedent was required to be on the pavement. Consequently, we find no error in the trial court's classification of decedent as a pedestrian or in the instructions pertaining to the degree of care required of him.
The instructions which were given properly set forth the duties of the decedent as a pedestrian to exercise ordinary care for his own safety*fn2 and permitted the jury to take into consideration the surrounding circumstances in determining whether he acted reasonably.
Plaintiff's contention that the evidence of blood alcohol should not have been admitted is based upon an asserted violation of rights embodied in the Indiana Constitution as well as a violation of "the right of privacy." Plaintiff's argument may be condensed to two points: (1) The evidence was inadmissible because it was obtained in violation of decedent's rights under Article I, Section 11 of the Indiana Constitution.*fn3 (2) Decedent's body became the property of his widow according to Indiana law and since the blood was taken without ...