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Summers v. Hopwood

JULY 30, 1970.




Appeal from the Circuit Court of Macon County; the Hon. DONALD W. MORTHLAND, Judge, presiding. Affirmed.


Plaintiff appeals from judgments for the defendant entered after jury verdicts upon his respective claims as administrator for the wrongful death of his son, William, and his individual action for funeral expenses for the son.

Upon appeal plaintiffs contend that the judgments should be reversed and that judgments be entered for the plaintiff with a trial on the issue of damages only, or in the alternative, that a new trial should be granted by reason of the errors occurring.

There is no real conflict in the evidence. Decedent, aged 14 years, left a bowling alley between 8:30 and 9:00 p.m. on March 9, 1967, and the injury occurred while he was walking north on Brett Avenue to his home about three blocks distant.

Brett Avenue is a blacktop road about 19 feet wide, unlighted, with no sidewalks on either side. It is outside the City of Decatur. There are no speed signs. The shoulder on the east side — about 4 feet wide — is wider than the shoulder on the west side. A witness, Snyder, who resided on the street, testified that most children walk on the east side. The evening was dark and clear, there being no moonlight or artificial light.

Defendant was driving a 1962 Chevrolet north on Brett Avenue on her way home some time after 8:30 p.m. in the evening when she struck something which hit the windshield and went over the car. Defendant immediately applied her brakes and stopped. In her judgment, she was travelling 30 miles per hour at the time of impact, although she told the sheriff's deputy she could have been travelling 35 to 40 miles per hour. Defendant then drove around the corner, stopped at the house of John Snyder and advised him that she had struck a boy. She said her lights were out after the accident and she couldn't see. Mr. Snyder took a flashlight down to the place and found the body of the boy completely off the road on the east side, face up, with his head south and his feet north. The boy had dark trousers and a dark jacket, and his hands were in his pockets.

Defendant states that her lights were on prior to the impact, that she was driving near the left center of the road, and that she did not see the boy before he was struck. She said she was keeping a careful lookout ahead. She had lived in the area five months and drove down Brett Avenue frequently. She had seen people walking down this street during night hours.

A sheriff's deputy testified that there were two skid marks about 28 feet in length which started parallel to where the boy's body was found and proceeded north. The skid mark farthest east was 3 feet from the edge of the pavement, and the marks proceeded northwest to a point where the left skidmark was 2 1/2 to 3 feet from the west side of the pavement. At the scene he found a dark plaid corduroy hat. After the accident, the sheriff's deputy tested defendant's headlights and found that the left ones were working and the right ones smashed. The road surface was dry but the shoulders on either side were wet.

Several witnesses testified that the boy was athletic, healthy, a good student and possessed of careful habits.

Initially, the jury were given four forms of verdict prepared by plaintiff: Form A found for the individual plaintiff for family expense; Form B for the plaintiff administrator; Form C found for the defendant as to the plaintiff's individual claim; and Form D found for the defendant as to the administrator's claim. At the instructions conference, the trial court questioned giving so many forms of verdict as liable to cause confusion.

The jury responded to a special interrogatory, "Do you find that the decedent was contributorily negligent?", with the answer "No." It also returned verdict Form D, which found in favor of the defendant and against the plaintiff as administrator. The court advised the jury that they had returned a verdict in only one case, and that they must decide both cases and instructed them to retire with the forms of verdict for further deliberation.

While the record does not specifically indicate the time, it does show that sometime thereafter the jury sent a written question to the court, "Must our decision be either C and D or A and B, or can it be a combination?" The court did not respond to the inquiry. Thereafter, the jury returned with verdict Form A, finding in favor of the plaintiff individually and against the defendant in the amount of $2,500, and Form D which again found for the defendant upon plaintiff's claim as administrator.

The court and counsel considered such verdicts inconsistent and the court proposed and prepared new forms of verdict. Plaintiff's attorney objected on the ground that the special interrogatory controlled and that such amounted to a finding of guilty so that he was entitled to a trial on damages only. Defendant's attorney moved for a mistrial but almost immediately withdrew the motion. Plaintiff's attorney then moved for a mistrial, and such was denied.

The new forms of verdict prepared by the court have been called a "combined" verdict form. One of the new forms provided for holding in favor of the plaintiff upon each of his claims which were stated separately, and each provided a blank for the filling in of the amount of damages as to each claim. The court filled in the amount of plaintiff's individual damages in the sum of $1,560.95, being the precise amount of expenses proven. This form left blank the amount of plaintiff's ...

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