Marshall v. Clark

FOR PUBLICATION

 
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
                         Minneapolis, Minnesota
    
        
 

IN THE
COURT OF APPEALS OF INDIANA

TRACY A. MARSHALL,                )
            )
    Appellant-Plaintiff,    )
            )
        vs.    )    No. 79A05-9510-CV-420
            )
CLARK EQUIPMENT COMPANY and    )
CLARK LIFT CORPORATION OF INDIANA,    )
            )
    Appellees-Defendants.    )

APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable George J. Heid, Judge
Cause No. 79D02-9209-CP-158

August 14 , 1997

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 1 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.
Rehearing denied.
BARTEAU, J., and FRIEDLANDER, J. concur

Footnote:     1 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.