Stallings v. Dick

• Citation: 210 N.E.2d 82,139 Ind.App. 118
• Decision Date: 15 October 1965
• Docket Number: No. 2,No. 19871,19871,2
• Parties: John STALLINGS, Gerald Evans, Appellants, v. Joseph DICK, Jr., Appellee
• Court: Court of Appeals of Indiana

Page 82

210 N.E.2d 82

139 Ind.App. 118

John STALLINGS, Gerald Evans, Appellants, v. Joseph DICK, Jr., Appellee.

No. 19871.

Appellate Court of Indiana, Division No. 2.

Oct. 15, 1965.

Rehearing Denied Oct. 25, 1965.

[139 INDAPP 120]

Bamberger, Foreman, Oswald & Hahn, Evansville, for appellant John stallings.

McCray & Clark, Evansville, for appellant Gerald Evans.

Clements & McClellan, Mt. Vernon, McDonald & McDonald, Princeton, for appellee.

SMITH, Judge. $This is an action brought by appellee, Joseph Dick, Jr., against the appellants, John Stallings and Gerald Evans, to recover damages for personal injuries allegedly sustained by the appellee as a result of the appellee being thrown from an automobile, owned and operated by the appellant John Stallings, which was being pushed from the rear by a truck operated by appellant Gerald Evans. That as a result of being thrown from said automobile said appellee was run over by said truck, jointly operacted by said appellants, which said accident occurred on the 28th day of July, 1958 just west of the intersection of Water and Mulberry Streets in the city of Mt. Vernon, Indiana.

The appellee filed a complaint in one paragraph which was later amended, to which amended complaint the appellant John Stallings filed his motion to make appellee's amended complaint more specific, definite and certain, which motion the trial court overruled. The appellant John Stallings filed his demurrer to parts of appellee's amended complaint, which demurrer was overruled; and thereafter the appellant John Stallings filed his general demurrer to appellee's amended complaint, which general demurrer was overruled. The appellant John Stallings filed his answer in denial to appellee's [139 INDAPP 121] amended complaint, and thereafter he filed a second paragraph of answer to appellee's amended complaint. The appellee filed his reply in denial to the second paragraph of answer of the appellant John Stallings.

The amended complaint charged that the appellant John Stallings, on the 28th day of July, 1958 was the owner of a 1954 Chevrolet automobile which was parked on the south side of Water Street in the city of Mt. Vernon, Indiana, approximately thirty feet west of the intersection of Water Street and Main Street; and at said time and place said appellant was attempting to start the engine of his automobile. That at said time and place the appellant Gerald Evans had under his control a truck which was parked on the north side of Water Street in the city of Mt. Vernon, Indiana, in the first parking space west of the intersection of Water Street and Main Street. That by an arrangement or an agreement between said appellants they jointly agreed and undertook to push the stalled automobile of the appellant Stallings with the truck of appellant Evans from the parked position on the aforesaid street; that Stallings' automobile was being guided by him and was being pushed from the rear by the truck operated by Evans; and that at said time and place it appeared, that due to a difference in height of the bumper on said automobile and said truck, there was an overriding of the bumpers so that they did not come together, thereby enabling said automobile to be pushed by said truck. That at the request of the appellants acting together, the appellee Joseph Dick, Jr., stood on the rear bumper of the Stallings automobile so that his weight would depress the bumper and thereby enable it to meet the bumper on said truck; that said appellants, acting jointly, carelessly and negligently pushed, steered and propelled said automobile from a parked and standing position while appellee at their request was standing on the rear bumper of the Stallings motor vehicle, and that said automobile and truck proceeded in an easterly direction on Water Street and as they arrived [139 INDAPP 122] just west of the intersection of Water Street and Mulberry Street, appellee was violently thrown from Stallings' automobile onto the street and was run over by Evans' truck thereby causing him serious and permanent injuries.

The appellants were jointly charged in the amended complaint with the following acts of negligence:

1. Pushing, steering and propelling said motor vehicle over a rough, uneven and pitted street, thereby causing the vehicles to lurch, sway and jolt;

2. Pushing, steering and propelling said vehicles over a rough, uneven and pitted street at a speed greater than necessary, reasonable and prudent under the conditions, to-wit: 20 to 25 miles per hour;

3. Pushing, steering and propelling said vehicles with the appellee in a position of peril on the rear of Stallings' automobile;

4. Pushing, steering and propelling said disabled automobile on a public street while said automobile was in an unsafe mechanical condition so as to be dangerous to persons on the street, including the appellee; and 5. Pushing said Stallings automobile with the gears disengaged until it attained a speed of 20 to 25 miles per hour and suddenly and without warning throwing said automobile into gear causing a sudden violent jolting and lurching of said automobile.

The appellant John Stallings filed an answer in denial expressly denying the charges of negligence contained in the amended complaint and the facts alleged with respect thereto; and, by way of a second paragraph of answer, the appellant, John Stallings, charged that the appellee well knew the risks necessarily incident to standing or riding upon the rear bumper of the automobile driven by the appellant Stallings, and knowingly and voluntarily placed himself upon said rear bumper of the automobile operated by appellant Stallings thereby exposing himself to and incurring the risk of the hazard of falling or being thrown from said automobile; and further charged that the injuries of which the appellee complains were proximately caused in whole or in part by the risk thus incurred by the appellee. The appellee filed a reply [139 INDAPP 123] in denial to the second paragraph of appellant Stallings' answer.

The appellant Gerald Evans filed an answer in denial to appellee's amended complaint expressly denying the charges of negligence contained in the amended complaint and the facts alleged with respect thereto; and, by way of a second paragraph of answer, the appellant Evans charged that the appellee well knew the risk necessarily incident to standing or riding upon the rear bumper of the automobile operated by the appellant Stallings, and knowingly and voluntarily placed himself upon said rear bumper thereby exposing himself to and incurring the risk of the hazard of falling or being thrown from said automobile, and further charged that the injuries of which the appellee complains were proximately caused in whole or in part by the risk thus incurred by the appellee. The appellee filed a reply in denial to the second paragraph of appellant Evans' answer.

Upon the issues thus joined the cause was submitted to a jury for trial. The jury returned a joint verdict for the appellee and against the appellants John Stallings and Gerald Evans awarding the appellee the sum of $20,000.00 as damages. Judgment was thereafter rendered on the verdict.

The appellant John Stallings and the appellant Gerald Evans filed separate and several motions for a new trial which motions were overruled and from these rulings this appeal has been taken.

The court granted appellants' petition to file a joint brief with added sections by each appellant containing questions and issues pertaining and applicable separately to each appellant.

The separate and several assignments of error of appellants are as follows:

'A.

'The appellant, Gerald Evans, separately and severally avers that there is error in the proceedings and judgment in said cause in this:

[139 INDAPP 124] '1. The trial court erred in overruling the motion of the appellant, Gerald Evans, for a new trial.

'B.

'The appellant, John Stallings, separately and severally avers that there is error in the proceedings and judgment in said cause in this:

'1. The trial court erred in overruling the motion of the appellant, John Stallings, for a new trial.

'2. The trial court erred in overruling the demurrer of the appellant, John Stallings, to plaintiff's [appellee's] amended complaint.'

Generally the appellants allege as error that the verdict of the jury is not sustained by sufficient evidence and the verdict of the jury is contrary to law.

The appellants contends that the court erred in overruling the motion and request of the appellants John Stallings and Gerald Evans to give to the jury at the conclusion of the evidence a peremptory instruction to return a verdict for the appellants John Stallings and Gerald Evans and therefore the verdict of the jury is not sustained by sufficient evidence and is contrary to law.

In support of this contention the appellants specifically urge that the appellee was guilty of negligence which proximately contributed to his injuries when he stood on a bumper between two moving motor vehicles; and that appellee incurred the risk of the injuries sustained when he voluntarily stood on a bumper between two moving motor vehicles. The appellants maintain that appellee's voluntary participation in the described efforts to start the vehicle of appellant Stallings constituted contributory negligence as a matter of law, both in appellee's entering upon the act in the method described, as well as in the manner of performing the act.

The prevailing Indiana rule is that contributory negligence is generally a question of fact for the jury to determine where [139 INDAPP 125] the facts are such as to be subject to more than one reasonable inference. However, where the facts are undisputed and only a single inference can reasonably be drawn therefrom, the question of contributory negligence becomes one of law. Pittsburgh, etc., R. Co. v. Spencer (1884), 98 Ind. 186; Jenney Electric Mfg. Co. v. Flannery (1913), 53 Ind.App. 397, 98 N.E....