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Pryor v. Hoskins9/11/2002
s App. 96).
The truckers objected to this instruction because " here was no evidence in this case as to how much this trailer weighed." (Tr. 705). This is also the truckers' argument on appeal.
Hoskins responds that the truckers have never contended that the instruction was an incorrect statement of the law. Indeed, such would be untenable inasmuch as the statutory provision was provided to the jury as a stipulated exhibit. See Ex. 14. Hoskins also argues that the many admitted photographs of the trailer would allow the jury to infer that the trailer weighed more than 3,000 pounds. However, photographs alone that make it possible to infer the trailer weighed more than 3,000 pounds do not constitute evidence that the trailer did so weigh. Hoskins also suggests that Alroth indicated that certain lights were required on the trailer because of its weight. However, Alroth seems to have testified that the statute required such lights on a trailer weighing more than 3,000 pounds - not that this one did.
Our supreme court has noted the long history of the principle that "it is error to instruct the jury on matters which are not supported by the evidence in the case." Miller v. Alvey, 246 Ind. 560, 207 N.E.2d 633, 637 (1965). And, we have cautioned that when a statute "is the main thrust of an instruction," it "must be correctly applied to the issues and the evidence." Board of Comm'rs of Miami County v. Klepinger, 149 Ind. App. 377, 273 N.E.2d 109, 114 (1971) (emphasis added). Although giving this instruction without the necessary evidentiary foundation may not rise to the level of reversible error, evidence that the trailer weighed more than 3,000 pounds should have been adduced at trial to warrant this instruction having been given.
4. Judgment on the Evidence
When a defendant moves for judgment on the evidence at the conclusion of trial, the motion should be granted only where an issue in the case or an essential element of the claim is not supported by sufficient evidence. S.E. Johnson Companies, Inc. v. Jack, 752 N.E.2d 72, 76 (Ind. Ct. App. 2001). If there is any probative evidence or reasonable inference to be drawn therefrom to support an essential element of the claim, the judgment on the evidence is not appropriate. Id. We review a decision to grant or deny a motion for judgment on the evidence for abuse of discretion. Id. Using the same standard as the trial court, we consider the evidence in the light most favorable to the non-moving party. Id.
The truckers contend that their motion for judgment on the evidence made at the close of the trial should have been granted. Specifically, they argue that "nothing Ward did proximately caused the accident" because "all Hoskins' evidence shows is that dense, penetrating fog caused her to crash into the back of Ward's trailer," and that Ward "had no duty to do anything more." Appellants' Br. at 24, 25, 26.
Hoskins responds by directing our attention to various evidence before the trial court as to where Ward parked his trailer, what the weather may have been at the time he parked the trailer, the appearance of the back of the trailer, the possible absence of the required reflector on the rear outside corner of the trailer, and Ward's belief that he could have had no obligation to consider the safety of passing motorists. In the trucker's reply, they return to the question of the fog and argue that "the only direct evidence presented as to the state of the fog when Ward parked between midnight and 1:00 AM was Ward's testimony that the fog was light." Reply at 17.
We cannot agree with the truckers' characterization of Ward's testimony. The general tenor of Ward's testimon
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