The opinion
Concurring Opinion
Garrard, J.
I concur with Judge Hoffman but believe a word of further explanation may be necessary regarding our review of the exclusion from evidence of any reference to a sign posted near the scene of the collision indicating a speed limit of 20 m.p.h.
The sign was not established to have been erected pursuant to a valid ordinance of the City of Rochester. Thus, exceeding the limit expressed on the sign would not constitute negligence through the violation of a speed statute or ordinance. Devine v. Grace Const. & Supply Co. (1962), 243 Ind. 98 , 181 N.E.2d 862 .
On the other hand, as Judge Staton points out, negligence is normally to be determined by the actions of a reasonably *227 prudent person acting under the same or similar circumstances. Furthermore, I agree that some warning is implicit in a sign advising motorists of a low speed limit. Why then should the existence and location of the sign not be admitted in evidence as simply one of the factual circumstances relevant to the ultimate determination of whether Blaeketor exercised reasonable care?
The answer lies in the sound discretion with which a trial court is vested in determining the admissibility of marginally relevant evidence where the risk of prejudice, confusing the issues, or misleading the jury outweighs the probative value of the evidence. See, McCormick on Evidence (Second Ed.) §185; Rule 403, F.R. Ev.; cf., Spears v. Aylor (1974), 162 Ind. App. 340 , 319 N.E.2d 639 .
A great number of the cases dealing with traffic control devices erected without proper authority involve either stop signs regular in appearance or traffic control lights. See, Geisking v. Sheimo, and other citations in the principal opinion. Not only has a driver’s disregard of such signals been admissible, it is often referred to by the courts as “controlling.” The reason is apparent. A reasonable man exercising ordinary prudence does not deliberately run through a stop sign in the face of opposing traffic even if he carries certified proof that no statute or ordinance was enacted to authorize the sign in question.
Furthermore, signs posted which are actually seen, or in the exercise of reasonable care should have been seen, warning of such things as road construction, children at play, etc. would be relevant in determining whether a particular driver exercised reasonable care. However, such signs would not be determinative of the issue. They would merely constitute one additional fact or circumstance to be considered in assessing reasonable care.
Thus, in the case before us, a posted sign advising of a 20 m.p.h. speed limit would imply there was some reason for *228 traveling below the statutory limit. As such, it would have some probative value, but only on the broad question of whether Blacketor was driving “at a speed greater than was reasonable or prudent under the conditions and having regard to the actual and potential hazards then existing,” i.e., exercising reasonable care. See, IC 1971 9-4-1-57.
When stated in this fashion, the opportunity of prejudicing Blacketor and misleading the jury is apparent. How does one consider the implied warning of some unspecified hazard implicit in the sign’s presence, yet exclude from consideration the 20 m.p.h. dictate which has no legal significance ? At best, attempting to cope with this problem would undully emphasize the importance of the sign and would tend to confuse the jury as to the real issue of whether Blacketor’s speed was excessive under the circumstances. In view of these problems, the court did not abuse its discretion in excluding the evidence.