| Duchane v. Johnson, 400 NE 2d 193 (1980). A straight traveling bicyclist was left hooked by a left turning motorist driving a van October 3, 1976 at 8:45 pm. The van had its headlights on and the bicyclist had a lighted headlight. Both of them were traveling within the speed limit. Judgment for plaintiff affirmed. From the opinion of the Court of Appeals of Indiana, First District: "Duchane first claims that the trial court committed error in refusing two of his tendered instructions. The first instruction was a modification of Pattern Jury Instruction No. 7:03-- the burden of proof instruction. The tendered instruction listed the defendant's contentions as to the plaintiff's contributory negligence as: "(1) failing to exhibit a light on his bike; "(2) failing to keep a lookout for others using the public way; "(3) failing to yield the right of way to oncoming traffic; "(4) failing to maintain his bicycle under control in that Johnson failed to turn or brake in time to avoid the collision. "The second instruction explained the duty of maintaining a lookout and the legal consequences of failing to do so. [...] "The trial court, besides giving the pattern instructions on contributory negligence, gave an instruction on the duty to display a light on a bicycle at night and the legal effects of the failure of this duty. The trial court also gave an instruction involving the statute on the right of way in a left-hand turn with approaching traffic. We think that such instructions adequately presented the defendant's theories of contributory negligence to the jury. Duchane's essential argument concerning a lookout is that in failing to maintain a lookout, Johnson did not properly yield the right of way. Thus, the right of way instruction adequately covers Duchane's theory. Also, there was no evidence presented at trial that Johnson could have avoided the accident. Duchane attempts to parlay an isolated remark of Johnson at trial (that he thought just before the collision that he was about to be hit) into evidence of sufficient time to avoid the accident. An examination of the record makes it clear that the evidence is uncontroverted that Johnson did not have an opportunity to avoid the accident. We conclude, then, that because other instructions the court gave adequately covered the issues on which there was evidence, there was no error in refusing Duchane's instructions. ..." |
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