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02/08/88 TODD KUROWSKY v. SHERRY DEUTSCH

Filed. As amended February 12 1988.: February 8, 1988.

TODD KUROWSKY, APPELLANT, (DEFENDANT BELOW)
v.
SHERRY DEUTSCH, APPELLEE, (PLAINTIFF BELOW)



APPEAL FROM THE HOWARD SUPERIOR COURT, DIVISION II, THE HONORABLE CARL E. VAN DORN, JUDGE, CAUSE NO. 8894.

Shields, P.j., Sullivan, J., Robertson ,j., Concurs.

Author: Shields

SHIELDS, P.J.

Todd Kurowsky, the defendant, appeals the jury verdict in favor of Sherry Deutsch, the plaintiff, in a negligence action.

FACTS

On April 20, 1984, at approximately 6:00 p.m., Sherry Deutsch suffered personal injuries when the bicycle she was riding collided with a bicycle ridden by Todd Kurowsky, a nine-year-old child. Deutsch filed an action claiming the collision occurred because Kurowsky failed to yield the right-of-way and did not keep a proper lookout before exiting a driveway into the street upon which she was traveling. Kurowsky denied liability and further claimed Deutsch was contributorily negligent. The jury returned a verdict awarding Deutsch $26,000.00.

ISSUE

The issue on appeal is whether the trial court erred in giving two jury instructions over Kurowsky's objection. We reverse.

Discussion

I.

The first contested jury instruction, final instruction no. 9, reads as follows:

A series of statutes of the state of Indiana in full force and effect at the time of the accident in controversy provide as follows:

9-4-1-14. Highways. --- (a) Street or highway: the entire width between the boundary lines of every way publicly maintained when a part thereof is open to the use of the public for purposes of vehicular traffic.

(b) Private road or driveway: every way or place in private ownership and used for vehicular traffic traveled by the owner and those having expressed or implied ...


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