Flamion v. Dawes
| Decision Date | 12 December 1929 |
| Docket Number | No. 13521.,13521. |
| Citation | 169 N.E. 60,91 Ind.App. 394 |
| Court | Indiana Appellate Court |
| Parties | FLAMION v. DAWES. |
OPINION TEXT STARTS HERE
Appeal from Dubois Circuit Court; David D. Corn, Special Judge.
Action by Viola Dawes against Edward J. Flamion. Judgment for plaintiff, and defendant appeals. Affirmed.
Fenton, Steers, Beasley & Klee, of Indianapolis, and McGinnis, Waller & McGinnis, of Evansville, for appellant.
L. N. Savage, of Rockport, U. B. Ewing, of Tell City, L. A. Savage, of Rockport, and W. F. Dudine, of Jasper, for appellee.
Action by appellee to recover damages for the wrongful death of her daughter, Jessie Killams, age 13 years, who was killed in an automobile accident in Perry county, Ind. The complaint is in two paragraphs.
[1][2] The first paragraph alleges that appellant approached the car in which appellee's daughter was riding, traveling in the same direction and to the right of the traveled portion of said highway at a dangerous and reckless rate of speed, and, without warning, purposely, recklessly, and carelessly attempted to pass and did pass the automobile in which appellee's daughter was riding while it was upon a narrow levee and fill; that by reason of a curve in said highway and its running down a hill, and the dust created by the passing of a coal truck, appellant did not have a clear and unobstructed view of said highway for a distance of 500 feet at the time he attempted to pass; that the automobile in which appellee's daughter was riding was being driven on the right-hand side of said highway, and as near the edge of the embankment as safety would permit; that appellant, in attempting to pass the automobile in which appellee's daughter was then riding, struck it with his truck with great force and violence; that, by reason of appellant so striking the car in which appellee's daughter was riding, and wholly without any fault or negligence of the daughter or the driver of the automobile, such automobile was thrown from the highway and down said embankment on the left-hand side of said highway and overturned, and the daughter was thrown against the concrete bulkhead or abutment of a drain, and the automobile was thrown upon her, crushing and wounding her, and thereby causing her immediate death.
The second paragraph alleges that appellant crowded in toward the automobile, forcing the driver thereof to drive so far to the right of the traveled part of the surface of said highway as to cause the right-hand wheels of said automobile to slip off the right side of the embankment or levee, under fear of imminent danger of being struck by the truck; that the driver of the automobile in which appellee's daughter was riding, being alarmed and disconcerted by the reckless, negligent and careless driving of appellant, lost control of his automobile while attempting to regain the traveled roadbed, skidding in the loose gravel and clay on the right side of the embankment, and was thrown down the embankment on the left-hand side of said highway while appellee's daughter was riding therein, and she was thrown against the concrete bulkhead or abutment of the drain, and the automobile in which she was riding thrown upon her, causing her death.
Appellant's motion to make the first paragraph more specific, his motion to require appellee to state facts in each paragraph to support conclusions, and his demurrer to each paragraph of the complaint, were each overruled.
There was a trial by jury, resulting in a verdict against appellant for $2,500, and judgment was rendered on the verdict. Appellant's motion for a new trial was overruled, and this appeal followed. The errors relied on for reversal are the respective rulings of the court.
We have stated briefly the respective paragraphs of complaint filed by appellee, and from this statement of the contents thereof it is apparent that the court did not err in overruling appellant's motion to make more specific. Each paragraph was sufficient to apprise appellant of the nature of the charge against him and to show that appellant's negligence was the proximate cause of the death of the daughter. The evidentiary facts which appellant sought to have embraced in the complaint were not necessary. Each paragraph of complaint was sufficient to withstand appellant's demurrer.
Appellant does not contend that the evidence was insufficient to sustain the verdict, but does contend that certain evidence, hereinafter considered, was improperly admitted.
[3] It appears by the evidence that about two miles to the south of the place of the accident, and a few minutes before, witness Lonnie Landman met the automobile driven by appellee's husband, and in which she and the daughter and another little girl were riding, and at the same time appellant came up, going in the same direction as the Dawes car, and that appellant attempted to pass at a place where there was a curve; that he met Landman, who, in order to avoid a collision, went into the ditch. Appellee testified that, the first she knew, appellant's truck was coming right at them from the rear, and they gave him the road and took the ditch, a small ditch. She noticed the Landman car approaching from the opposite direction, and that he also took the ditch, and that there still was not room for appellant to pass, and so he fell back. Appellant testified that he followed appellee's car, in which the little girls were riding, about two miles, all the way out to McCallister...
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