Hendrix v. Harbelis
| Decision Date | 09 September 1965 |
| Docket Number | No. 1,No. 20181,20181,1 |
| Citation | 209 N.E.2d 906 |
| Parties | Thomas HENDRIX, Appellant, v. Peter HARBELIS, Appellee |
| Court | Indiana Appellate Court |
Fred M. Stults, Jr., Gary, for appellant.
Barce, Barce & Vann, Kentland, Chris J. Pappas, Gary, for appellee.
This action was commenced in the Newton Circuit Court by the plaintiff-appellee to recover damages for personal injuries which he allegedly sustained while crossing an intersection in Gary, Indiana.
The complaint alleged negligence on the part of the appellant as the proximate cause of the appellee's injuries. An answer in denial was filed by the appellant and the issues were formed thereon. Trial was by jury. At the close of appellee's evidence the appellant filed a written motion for a directed verdict which motion was overruled. Appellant renewed his motion for directed verdict at the close of all the evidence which motion was subsequently overruled. The appellant tendered written interrogatories to be answered by the jury, some of which were submitted. The jury returned answers to the interrogatories and a verdict for the appellee in the sum of $10,000.00. Appellant filed a motion for judgment on the interrogatories which motion was overruled and judgment was entered for the appellee in accordance with the general verdict. Appellant then filed a motion for new trial which motion was overruled.
The specifications urged in appellant's motion for new trial are as follows:
1. The verdict of the jury is not sustained by sufficient evidence.
2. The verdict of the jury is contrary to law.
3. The damages assessed by the jury are excessive.
4. Error of law occurring at the trial in each of the following particulars * * * (thereafter setting out alleged errors in the admission of certain evidence, refusal by the court to give certain tendered instructions of appellant; the giving of certain instructions of the appellee; and the refusal to submit certain interrogatories of appellant to the jury).
The assignment of errors relied upon for the reversal by the appellant towards three causes, that:
1. The court erred in overruling appellant's motion for a directed verdict at the end of plaintiff's evidence.
2. The court erred in overruling appellant's motion for a directed verdict at the end of all the evidence.
3. The court erred in overruling appellant's motion for new trial.
The appellee alleged six acts of negligence on the part of the appellant, one of which was withdrawn from consideration of the jury, the remaining allegations being as follows:
That the defendant was negligent and careless in the following particulars, to-wit:
a. In negligently and unlawfully failing to give plaintiff any notice or warning of his approach.
b. In negligently and unlawfully failing to keep a proper and sufficient lookout for plaintiff, who at all times herein mentioned was lawfully upon said street and who had the right-of-way.
c. In negligently and unlawfully failing to stop his said automobile when he saw that a collision with plaintiff was imminent.
* * *
* * * e. In negligently and unlawfully operating said automobile without looking in the direction in which he was proceeding.
f. In negligently operating said motor vehicle in such a manner as to endanger the life and limb of the person using the public highway at said time and place.
In order to sustain his burden of proof as to actionable negligence, the appellee, plaintiff below, had to present some credible, reliable evidence on each of three elements, namely:
1. a duty owing by appellant to appellee.
2. failure to perform that duty.
3. injury arising as a proximate result thereof.
Harris v. Indiana General Service Co. (1934), 206 Ind. 351, 189 N.E. 410.
We shall consider appellant's argument in relation to the alleged errors in overruling appellant's motion for directed verdict at the close of plaintiff's evidence, and the renewed motion at the close of all the evidence.
When there is a total absence of evidence or legitimate inferences in favor of the plaintiff upon the issues or where the evidence is without conflict and is susceptible of but one inference and that inference is in favor of the defendant, then upon request, the court may give a preemptory instruction. New York C. & St. L. R. Co. v. Mercantile Nat'l Bank (1960), 130 Ind.App. 638, 165 N.E.2d 382.
With this rule as the standard it is the duty of this court to determine, after reviewing the evidence most favorable to the appellee and admitting the truth of all the evidence given in favor of the party against whom the motion was contemplated and all reasonable inferences flowing therefrom as well as drawing against the party requesting the preemptory instruction all the inferences which the jury might have reasonably drawn, whether the overruling of said preemptory instruction was prejudicial error. Bradford v. Chism (1962), 134 Ind.App. 501, 186 N.E.2d 432, I.L.E. Trial, Sec. 132, p. 125.
From an examination of the evidence as set out in narrative form in the appellant's brief and concurred in...
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Hendrix v. Harbelis
...Gary, for appellee. ARTERBURN, Judge. This case is here on petition to transfer from the Appellate Court. (See opinion reported in 209 N.E.2d 906). It is an action by plaintiff-appellee to recover damages for personal injuries which he allegedly sustained while crossing an intersection in a......
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