dissenting.
I respectfully dissent. But I do so from an unusual perspective which I feel should be disclosed. I was one of the attorneys who represented the plaintiff-appellant in Berger v. Peterson, 498 N.E.2d 1257 (Ind.Ct.App.1986) almost twenty years ago. I have not recused myself from this case because its result cannot benefit or harm my former client. I write in dissent because I believe Berger v. Peterson and before it, Blankenship v. Huesman, 173 Ind.App. 98, 362 N.E.2d 850 (1977), were wrongly decided.1
It is undisputed that Wright was presumed to have acted negligently when he failed to stop at a stop sign in violation of Indiana Code section 9-21-8-82. However, that presumption of negligence may be rebutted by evidence that Wright acted as a reasonably prudent person would act under the circumstances. Osterloo v. Wallar, 758 N.E.2d 59, 63 (Ind.Ct.App.2001), trans. denied (citing Stepanek v. Durbin, *315640 N.E.2d 429, 431 (Ind.Ct.App.1994), trans. denied ).
Indiana Code section 9-21-5-1 provides: "[a] person may not drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions, having regard to the actual and potential hazards then existing." Ind.Code § 9-21-5-1 (1992). Further, pursuant to section 9-21-5-4, when weather or highway conditions create a hazard, the driver of a vehicle is required to "drive at an appropriate reduced speed." Ind.Code § 9-21-54 (1992).
At trial, Wright testified that he had driven through the intersection where the accident occurred one or two times within a few days of the accident.2 Tr. p. 88. He also admitted that he was aware that there was a stop sign at the intersection. Tr. p. 91. Further, he stated, and the photographs introduced at trial established, that Thomas Street is a straight road and there is nothing in or near the roadway to obstruct an eastbound driver's view of the stop sign. Tr. p. 88; Ex. Vol., Plaintiff's Exs. 9 and 10. Wright also testified that he was traveling approximately twenty to twenty-five miles per hour and the sun was in his eyes "pretty much the whole time" he was traveling eastbound on Thomas Street.3 Tr. pp. 89, 92. I believe that this evidence leads to but one conclusion: Wright was negligent as a matter of law.
Wright admitted that he could not see because he was blinded by the sun. However, instead of reducing his speed, deploying his visor to shield his eyes, and/or pulling his car over to the side of the road, Wright continued to drive eastbound on Thomas Street at approximately twenty to twenty-five miles per hour. Wright provided no justification for continuing to drive or for failing to reduce his speed even though he was unable to see the roadway. Therefore, I believe no reasonable juror could conclude that Wright acted as a reasonably prudent person would act under these cireumstances.
Perhaps, the jury's verdict was one seeking to advise that it was not convinced of plaintiff's case on damages. If so, a verdiet of liability with minimal, if any damages would have been legally defensible. But I believe it to be the rare and difficult duty of the presiding judge to step in and take corrective action, through additional instruction to the jury or under Trial Rule 59, when presented with a defendant's verdiet on liability like the verdict at issue in this case.
For all of these reasons, I would reverse and remand for a new trial.
. In its opinion the majority relies primarily on Berger v. Peterson and Blankenship v. Hues-man. In those cases, the issue was whether the verdict was contrary to law, the same issue presented in this case. In the last twenty-five years, in cases discussing the rebutta-ble presumption of negligence, our court has rarely been called upon to determine whether a verdict was contrary to law. More often, this rebuttable presumption of negligence is discussed in cases where challenges to instructions or the grant or denial of summary judgment are raised. See e.g. Osterloo v. Wallar, 758 N.E.2d 59, 63 (Ind.Ct.App.2001), trans. denied (genuine issues of fact precluded entry of summary judgment); Stepanek v. Durbin, 640 N.E.2d 429, 430 (Ind.Ct.App.1994), trans. denied (the trial court abused its discretion when it refused Plaintiff's tendered instructions concerning the rebuttable presumption of negligence); Claxton v. Navarro, 615 N.E.2d 471, 475 (Ind.Ct.App.1993); Fankboner v. Schubert, 431 N.E.2d 856, 857 (Ind.Ct.App.1982).
. The majority states that Wright "presented evidence that he was unfamiliar with the intersection of Thomas Street and West Street and had only driven through the intersection one or two times in the past." Slip op. at 5. It is worth noting that Wright testified that he had obtained his driver's license approximately one week before the accident and had driven through that intersection one or two times within a week of the accident. Tr. pp. 84, 88.
. Wright traveled eastbound on Thomas Street for approximately one to two blocks before the accident occurred. Tr. pp. 88-89.