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10/15/87 ALVIN MILLER AND LYDIA MILLER v. INDIANA

Filed: October 15, 1987.

ALVIN MILLER AND LYDIA MILLER, APPELLANTS (PLAINTIFFS BELOW),
v.
INDIANA STATE HIGHWAY DEPARTMENT, BOARD OF COMMISSIONERS OF MARSHALL COUNTY, INDIANA, APPELLEES (DEFENDANTS BELOW); ROBERT BREEDEN, JOYCE BREEDEN, AND GARNETTA LIGHT, APPELLANTS (PLAINTIFFS BELOW), V. INDIANA STATE HIGHWAY DEPARTMENT AND BOARD OF COMMISSIONERS OF MARSHALL COUNTY, APPELLEES (DEFENDANTS BELOW)



APPEAL FROM THE KOSCIUSKO CIRCUIT COURT, Cause No. C-83-252, The Honorable Richard W. Sand, Judge.

Per Curiam

On June 9 and 10, 1987, we received petitions for rehearing from Alvin and Lydia Miller, Robert and Joyce Breeden, Garnetta Light and the Indiana State Highway Department. We grant rehearing for the limited purpose of addressing the following allegations of error:

1. This Court erroneously stated that the Court's Final Instruction No. 9 was given without objection; and

2. This Court erroneously determined that the Millers had waived any error with respect to the trial court's refusal of their Tendered Instructions Nos. 11, 12 and 13. In our original opinion, we quoted portions of the Court's

Final Instruction No. 9 and stated: "This instruction was given without objection." The State correctly notes that it objected to the instruction. However, we did not find an objection voiced by the Millers or Breedens. We, therefore, would have been more correct to state that the instruction was given without objection by the Millers or Breedens, the parties appealing the jury's verdict. In any event, Instruction No. 9 was not at issue in the appeal. Therefore, we conclude that the misstatement was not material to the Disposition of the case.

Next, the Millers contend we erroneously concluded that they failed to assert that they sought and were granted permission to file more than ten proposed instructions. Upon reviewing this allegation of error, we agree that the Millers noted in their reply brief that the trial court had granted their request to file instructions in excess of the imposed limit. While the trial court never explicitly stated it was doing so, its actions were sufficient to constitute an acceptance of the instructions. We, therefore, will address on rehearing the merits of the Millers' arguments with respect to Tendered Instructions 11, 12 and 13.

In considering whether any error resulted from the refusal of a tendered instruction, we consider: (1) whether the tendered instruction correctly states the law; (2) whether the evidence supports the instruction; and (3) whether other instructions adequately cover the substance of the tendered instruction. Flowers v. State (1985), Ind., 481 N.E.2d 100, 103; Davis v. State (1976), 265 Ind. 476, 355 N.E.2d 836, 838. Instructions 11, 12 and 13 fail to meet these criteria and were properly refused.

The Millers' tendered instructions stated:

NUMBER 11

The Defendant, State of Indiana, is chargeable with notice of dangerous, unsafe or hazardous conditions on its highways caused by the lack of visibility of its stop signs at intersections where these conditions are of such a nature that the State acting through its employees and representatives could, in the exercise of reasonable diligence, have ascertained the existence of such hazards in time to have corrected them.

NUMBER 12

As a part of the common law of the State of Indiana and even apart from the Uniform Manual on Traffic Devices, the State of Indiana, acting through its employees, is required to use reasonable care in posting stop signs at intersections on state highways and in maintaining its signs at said intersecting roads and a failure on the part of the State Highway to use reasonable care in signing and maintaining its signs constitutes negligence.

NUMBER 13

If the jury finds from the preponderance of the evidence in the case that under the circumstances reasonable care on the part of the defendant in maintaining its signs and intersection under its control required the posting of an additional sign or signs and that the defendant failed to use reasonable care to post such ...


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