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Foster v. Continental Can Corp.

February 19, 1986


Appeal from the United States District Court for the northern District of Indiana, South Bend Division. No. 82 C. 109 -- Allen Sharp, Chief Judge.

Author: Eschbach

Before ESCHBACH, POSNER, Circuit Judges, and GIBSON, Senior Circuit Judge.*fn*

ESCHBACH, Circuit Judge. Plaintiff appeals from a judgment for defendants and the denial of her motion for a new trial in a diversity negligence action governed by Indiana law.*fn1 The primary questions presented by this appeal are: (1) whether there was sufficient evidence upon which to instruct the jury regarding excuse for the violation of a safety statute; (2) whether an instruction on the defendants' duty of care correctly stated Indiana law; and (3) whether the district judge abused his discretion by denying plaintiff's motion for a new trial. For the reasons stated below, we will affirm.


The facts of this case are straightforward. On June 14, 1981, Sally Ann Foster ("plaintiff") was driving a Ford Pinto eastbound in the right lane of U.S. Highway 30 outside of Valparaiso, Indiana. It was daylight and the weather was clear. The roadway was a relatively straight and level four-lane highway divided by a grassy median. Plaintiff was not driving in excess of Indiana's 55 miles per hour speed limit.

Donald Elling, who was employed by Diversified Labor Service ("Diversified"), was driving a Mack semi-tractor and trailer carrying containers owned by Continental Can Corporation ("Continental") (collectively "defendants"). Elling was driving in the same direction, but behind, plaintiff. He decided to pass a line of traffic moving in the right lane. He proceeded into the left lane, overtook a car driven by one Joe DeGard, and pulled alongside plaintiff's Pinto.

At that point a pick-up truck approximately one-and-a-half to two blocks ahead in the left lane braked and slowed down. Elling could have avoided hitting the pick-up by coming to a complete stop in the left lane, but did not do so because he feared a rear-end collision. Instead he decided to change lanes. He turned on his right turn signal. Plaintiff did not see the turn signals; however, DeGard, who was driving behind plaintiff, observed the lights, and a police officer, who inspected the truck after the accident, confirmed that the signals were in working order. Elling then checked his side-view mirror, but did not see plaintiff's car because it was in his blind spot. After his turn signal had been on for four to six seconds, Elling moved into the right lane. The right rear of the trailer struck the left front of the pinto. Feeling the impact of the collision and thinking that a tire had blown out, Elling briefly returned to the left lane and then moved entirely into the right lane, hitting the Pinto again. The second collision drove the Pinto off the road. The car hit a tree, severely injuring plaintiff.

After a two-day trial, the jury returned a verdict for defendants and the district court entered judgment accordingly. The district court denied plaintiff's motion for a new trial. See Foster v. Continental Can Corp., 101 F.R.D. 710 (N.D. Ind. 1984).


A. Excuse Instruction

Plaintiff argues, first, that there was insufficient evidence upon which to instruct the jury on whether defendants' violation of a safety statute was excused. Indiana law provides that the "driver of a vehicle overtaking another vehicle proceedings in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle." Ind. Code ยง 9-4-1-66. By returning to the right lane before he had cleared plaintiff's car, Elling violated the statute. Under Indiana law, violation of a safety statute raises a rebuttable presumption of negligence. See Davison v. Williams, 251 Ind. 448, 456-57, 242 N.E.2d 101, 105 (1968); see also Brandes v. Burbank, 613 F.2d 658, 667 (7th Cir. 1980).

The district court accordingly instructed the jury that:

An act which is performed in violation of a safety statute or regulation is presumptively an act of negligence but the presumption is not conclusive and may be rebutted by showing that the act was justifiable or excusable under the circumstances. Until rebutted, the presumption of negligence is conclusive.

Where a person has disobeyed a safety statute, the violation may be excused or justified in a civil action for negligence by sustaining the burden of showing that the act might reasonably be expected of a person of ordinary prudence, acting ...

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