Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 77-285-C -- James E. Noland, Judge .
Before Castle, Senior Judge, and Pell and Wood, Circuit Judges.
This is an appeal from a judgment in favor of the defendants, Burbank, and his employer, Finer Iron and Metal Company, Inc., following a jury verdict. The only error raised on appeal by the plaintiff Brandes relates to two instructions, one given and one refused.
The facts in this diversity case are essentially not in dispute. At approximately 7 o'clock on the morning of February 14, 1975, Burbank was operating a tractor-trailer unit east on Interstate Highway 70 west of Richmond, Indiana. Getting sleepy, he began to search for a place to stop and rest. He approached a rest stop but found it too crowded to enter. He made some attempts, unsuccessfully, to find a truck stop through his CB radio. He thereafter pulled off the traveled portion of the highway and stopped on a ten-foot wide asphalt emergency strip near the interchange with U.S. Highway 27. The nearest part of his unit was approximately three feet from the traveled portion of the IH 70. At the time of the stop, dawn was imminent. Some vehicles had headlights on while others did not. Burbank left on or turned on his headlights, clearance lights, brake lights, and four-way blinkers or flashers. At about this time, an Indiana State Police officer driving westwardly on IH 70 passed the intersection, saw the truck on the emergency strip with its lights on, and proceeded on to his destination. Burbank did not place any warning devices of any type next to or behind his unit on the asphalt strip on which he was parked.
As frequently is the case there was not complete unanimity on the evidence as to the visibility for people approaching his unit from the West. Burbank went to sleep in the cab of his unit, and at approximately 7:15 a. m. a van being operated east on the interstate highway by the plaintiff's husband struck the rear of the parked tractor-trailer unit. The husband was killed and the plaintiff received paraplegic injuries. There was also evidence that there were numerous locations at the U.S. Highway 27 interchange where a truck could leave the interstate highway and park. Burbank had not gotten out of his truck after he stopped. He had emergency flares "consisting of a flat piece of metal with two round reflector-type reflectors that stand upright with a flag on the top," but he did not place any of these devices to the rear of his vehicle.*fn1
The first claim of prejudicial error was with regard to Instruction No. 14 given by the court. To understand this instruction we must look, however, at two other instructions of the court, Nos. 11 and 12. Both instructions dealt with the subject of negligence per se. No. 11 concerned the potential applicability of the doctrine through an Indiana statute, I.C. 9-4-1-112, the pertinent portion of which, as stated in the instruction, was as follows:
Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of the said highway, but in every event, a sufficient unobstructed width of the roadway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of two hundred (200) feet in each direction upon such highway.
As we read this statute it pertains only to the leaving of a vehicle upon the "paved or main traveled part" of a highway, and we fail to discern that the statute had any application to the facts of the present case.*fn2 We therefore do not see how it could be concerned in the matter of whether Instruction No. 14 was prejudicially erroneous. The plaintiff-appellant has not advanced persuasive arguments justifying the applicability of Instruction No. 11.*fn3
Instruction No. 12 set forth a lengthy regulation of the Federal Highway Administration, U.S. Department of Transportation, pertaining to emergency signals of stopped vehicles. See 49 C.F.R. § 392.22 (1978). A portion of this regulation dealt with turn signals when a motor vehicle is stopped upon either the highway or the shoulder of a highway for any cause other than necessary traffic stops. We will assume for the purposes of this appeal that Burbank complied with this portion of the regulation. The next portion of the regulation, however, provided that whenever a vehicle is stopped upon either the traveled portion of the highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver should, as soon as possible but in any event within ten minutes, place various warning devices at various places specified in the regulation away from the stopped vehicle. There is no reason to set forth the specific types of warning devices or the places at which they were to be located as there is no contention that Burbank complied with this portion of the federal regulation.
Finally the instruction stated:
If you find that the defendants violated the provisions of this regulation without reasonable excuse or justification, then such violation would constitute negligence as a matter of law on the part of the defendants.
Now, coming to the challenged Instruction No. 14, it reads as follows:
Violation of a duty prescribed by statute or ordinance is generally considered negligence as a matter of law. Negligence as a matter of law, however, does not necessarily mean liability as a matter of law. A party may counter this evidence of negligence by showing justification for his noncompliance such as that his acts were the acts of a reasonably prudent man under the same circumstances, or by showing that his violation of the statute or ordinance was not a proximate cause of the injuries or damages sustained.
The focus of the objection of the plaintiff to this instruction is the inclusion of the phrase, as justification for non-compliance, "such as that his acts were the acts of a reasonably prudent man under the same circumstances."
The substantive law of the state of Indiana is that which we must apply in this case, and if we assume that the district court correctly charged in Instruction No. 12 that a violation of the federal regulation was negligence as a matter of law, we might, at least under some existing Indiana authority which has not been overruled, come quickly to the conclusion that Instruction No. 14 was erroneous. Thus, in Northern Indiana Transit, Inc. v. Burk, 228 Ind. 162, 89 N.E.2d 905, 909 (1950) the court stated:
When the breach of a statutory duty is held to be negligence Per se, or negligence as a matter of law, the court holds that the legislature has created an absolute duty, which cannot be escaped by attempting to prove that the breach was in fact done in the exercise of due care.
As a matter of logic, this statement would seem to be irrefutably correct. It would seem that the legislature itself has determined that the breach of the statutory duty constituted a failure to exercise due care, or in other words, that the acts violating the statute have been legislatively determined to be not those of a reasonably prudent person under the same circumstances. This does not mean that notwithstanding the existence of an absolute duty there cannot be an excuse precluding liability, a matter which we will discuss in greater detail hereinafter. It simply means that where the violation constitutes negligence as a matter of law one of those excuses is not that the acts were the acts of reasonably prudent person under the same circumstances. See Chicago, Rock Island & Pacific Railroad Co. v. Breckenridge, 333 F.2d 990, 995 (8th Cir. 1964). See also, Note, 5 Texas Tech Law Review 159, 162 (1973), commenting on a case decided by the Supreme Court of Texas, which summarized the rationale:
(The court) reasoned that to permit exoneration from a statutory violation by proof of ordinary care, without a legally acceptable excuse, is to reduce negligence per se to a simple common law negligence standard. This would allow the jury to ignore the statutory standard of care and substitute its own standard based upon any asserted excuse, no matter how flimsy. (Footnote omitted.)
The Indiana Supreme Court followed Burk with Larkins v. Kohlmeyer, 229 Ind. 391, 98 N.E.2d 896 (1951), and dealt with the matter of excuse, without giving any recognition to the exercise of reasonable care, by quoting favorably from an Ohio case as follows:
A legal excuse, precluding liability for injuries resulting from the failure to comply with the statutory requirements respecting the operation of a motor vehicle on the public highways, must be something that would make it Impossible to comply with the statute something over which the driver has no control, an emergency not of the driver's making causing failure to obey the statute, or an excuse or exception specifically provided in the statute itself. (Emphasis in the original).
299 Ind. at 400, 98 N.E.2d at 900.
Returning to Burk we find there, however, that not all statutory violations constitute negligence per se. Some may be merely Prima facie evidence of negligence. The determination of which standard is applicable depends upon several factors, a principal focus certainly being upon the statute itself and the duties it creates. Thus in Burk, 89 N.E.2d at 909-10, differentiation is made between stopping on the highway for a reasonable purpose and time as contrasted to parking, with the court noting that in ...