The railroad's proposed jury instruction contained language to the effect that the Public Service Commission's determination of the crossing's dangerousness or "extrahazardousness," or lack thereof, was only one factor for the jury to consider in its determination of liability; the district court, however, struck that portion of the jury instruction stating that the PSC's determination should be considered only a factor in determining liability. Unless an erroneous jury instruction affects the substantial rights of the parties, a new trial is not required. Simman, Inc., 762 F.2d at 595; Alloy International Co., 635 F.2d at 1226; see also Aero International, Inc. v. United States Fire Insurance Co., 713 F.2d 1106, 1113 (5th Cir. 1983); Spratt v. Alsup, 468 N.E.2d 1059, 1063 (Ind.App. 1984). As previously stated, we must not only consider "the instructions as a whole, but . . . the opening statements, the evidence and the closing arguments" to determine if an erroneous instruction affected a party's right to a fair trial to a substantial degree.
The only significant issue raised on appeal is whether the district judge erred in denying Coetta's and Katheryn's summary judgment motions. Relying on a prior state court judgment, Spratt v. Alsup, No. CTC 81-60 (Marshall Cir.Ct. Nov. 16, 1982); see Spratt v. Alsup, 468 N.E.2d 1059 (Ind.App.Ct. 1984), Coetta and Katheryn filed motions for partial summary judgment seeking to preclude Spratt from litigating the issue of his liability for their injuries. In the state court action, the Spratts sued George for personal injury arising from the collision on June 26, 1980. George counter-claimed against the Spratts for the injuries that he sustained as a result of the accident, and he was awarded $10,000 in damages.
Imel v. Thomas, 585 N.E.2d 712, 713 (Ind.Ct.App. 1992). Also, in Spratt v. Alsup, 468 N.E.2d 1059, 1063-64 (Ind.Ct.App. 1984), the duties of an automobile passenger were discussed as follows: An occupant of a vehicle is generally not required to be constantly on the lookout for unexpected danger.
Generally, an occupant of a vehicle is not required to be constantly on the lookout for unexpected danger. Spratt v. Alsup, 468 N.E.2d 1059, 1063 (Ind. Ct.App. 1984). However, a passenger has some duty to maintain a proper lookout, which is to say, a passenger remains under a duty to exercise reasonable care.
First, unlike the cases relied on by plaintiffs, here, there was no contemporaneous objection or motion for a mistrial. See Spratt v. Alsup, 468 N.E.2d 1059 (Ind.Ct.App. 1984); but see Tomeo v. Northern Valley Swim Club, supra. More importantly, defendant's statements were neither knowing and flagrant misstatements about the presence or absence of insurance, nor were they as prejudicial as the statements in the cases cited by plaintiffs.
Wielgus v. Lopez (1988), Ind. App., 525 N.E.2d 1272. If an instruction is deemed to be erroneous, we will nonetheless not find reversible error if, in light of all the instructions given, the erroneous instruction could not have misled the jury. Spratt v. Alsup (1984), Ind. App., 468 N.E.2d 1059. Here, the jury could not have been misled.
It has therefore waived its contention. Spratt v. Alsup (1984), Ind. App., 468 N.E.2d 1059, transfer denied; Kelley v. Hocutt (1955), 125 Ind. App. 617, 128 N.E.2d 879. Koppers seeks to avoid this result by citing to cases where the court has reversed for misconduct of counsel despite an apparent failure to move for a mistrial.
In determining whether the jury was misled we examine the evidence and record to determine if under proper instructions the verdict could have been different. Spratt v. Alsup (1984), Ind. App., 468 N.E.2d 1059, 1063, trans. denied; Zimmerman, at 693. It is well settled that the state has a general duty to exercise reasonable care in the design, construction, maintenance, and repair of its highways for the safety of the public.
The final instructional error alleged by the Hamiltons is that Instruction 24 did not make it clear that the burden of proof of contributory negligence is on DuBois. Indiana Rules of Procedure, T.R. 9.1(A). The burden of proof of contributory negligence was, however, covered in Instruction 6. Since we review all of the instructions as a whole, Spratt v. Alsup (1984), Ind. App., 468 N.E.2d 1059, trans. den., and the omission complained of in Instruction 24 was adequately included in another instruction, there is no cause for error. Chaffee v. Clark, supra.
The charge is vitiated only when the instruction is so erroneous that it must be concluded the jurors have been misled as to the law of the case." Spratt v. Alsup (1984), Ind. App., 468 N.E.2d 1059; Wyler v. Lilly Varnish Co. (1969), 146 Ind. App. 91, 252 N.E.2d 824; Drolet, Admtrx. etc., supra. I.