Download the original WordPerfect Document here
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES:
DAVID V. SCOTT ROBERT P. STONER
Scott & Forrest Spangler Jennings & Dougherty
New Albany, Indiana Valparaiso, Indiana
GEORGE W. SOULE
Bowman & Brooke
COURT OF APPEALS OF INDIANA
TRACY A. MARSHALL, )
vs. ) No. 79A05-9510-CV-420
CLARK EQUIPMENT COMPANY and )
CLARK LIFT CORPORATION OF INDIANA, )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable George J. Heid, Judge
Cause No. 79D02-9209-CP-158
OPINION ON REHEARING - FOR PUBLICATION
SHARPNACK, Chief Judge
The appellant, Tracy Marshall, has petitioned for rehearing of our opinion reported
in Marshall v. Clark Equip. Co., 680 N.E.2d 1102 (Ind. Ct. App. 1997). Although we deny
the petition, we find that some clarification of our opinion would be useful.
In his petition, Marshall asserts that our opinion is "incorrect as to the configuration
of the stand-up forklift."See footnote
Petition, p. 1. In our opinion, we stated in the recital of the facts
that "[a]lthough the forklift had two pedals, one for each foot, Marshall operated both pedals
with his right foot and allowed his left foot to rest outside the driver's compartment."
Marshall, 680 N.E.2d at 1103. Further on in the opinion, we stated that "the Appellees
asserted that Marshall misused the forklift by operating both pedals with his right foot and
allowing his left foot to rest outside the driver's compartment." Id. at 1108.
A review of the record reveals that we were mistaken as to the configuration of the
forklift. In fact, there are not two pedals, but one. That pedal is positioned in such a way
that it is intended to be operated by the left foot. It functions as a "dead man brake" and
stops the forklift when the downward pressure of the foot is removed.
The misperception of the facts does not affect the substance of our opinion. With this
clarification, the petitions for rehearing are denied.
BARTEAU, J., and FRIEDLANDER, J. concur
The defendant-appellees, Clark Equipment Company and Clark Lift Corporation, have also petitioned
for rehearing. Because they raise the same issue as Marshall in their petition, we likewise deny rehearing.
Converted from WP6.1 by the Access Indiana Information Network