Kampo Transit, Inc. v. Powers
| Decision Date | 24 November 1965 |
| Docket Number | No. 2,No. 20066,20066,2 |
| Parties | KAMPO TRANSIT, INCORPORATED, Lyle A. Thorson, Appellants, v. James A. POWERS, Appellee |
| Court | Indiana Appellate Court |
Isadore J. Fine, Joe S. Hatfield, Charles H. Sparrenberger, Eugene P. Fine, Evansville, for appellants.
John H. Jennings, Harold M. Wilson, Jr., Evansville, for appellee.
This is an action brought by the appellee against the appellants to recover damages for personal injuries sustained by the appellee as a result of his automobile colliding with a tractor-trailer operated by the appellant Thorson and owned by the appellant Kampo Transit, Incorporated.
The complaint alleged that Kampo Transit, Incorporated was the owner of a tractor-trailer which at the time of the alleged collision was operated by the appellant Thorson as the agent of Kampo Transit, Incorporated; that said tractor-trailer collided with the motor vehicle operated by the appellee Powers; and that said collision was caused by the negligence of the appellant Lyle A. Thorson.
The plaintiff's complaint specifically charged the defendants with the following acts of negligence:
1. That the defendant Thorson negligently and carelessly failed to maintain a reasonable lookout for other vehicles using the highway;
2. That the defendant Thorson negligently and carelessly failed to have reasonable control over his tractor-trailer;
3. That the defendant Thorson negligently and carelessly failed to operate the vehicle of the appellant Kampo Transit, Incorporated in his right lane but instead drove said tractor-trailer across the highway and across the double lines marking the center of said highway, and into plaintiff's lane of traffic;
[138 INDAPP 144] 4. That the defendant Thorson negligently and carelessly drove and operated the tractor-trailer at a high and dangerous rate of speed, to-wit: approximately 55 to 60 miles per hour;
5. That the defendant Thorson negligently and carelessly failed to give the plaintiff at least one-half of the main travelled portion of said highway.
Defendants Thorson and Kampo Transit, Incorporated answered the plaintiff's complaint in accordance with Rule 1-3 of the Supreme Court.
Upon the issues thus joined, the cause was submitted to the jury for trial, resulting in a verdict for the plaintiff in the amount of $55,000; and thereafter the court entered judgment on said verdict.
The appellants, separately and severally, filed a third amended motion for a new trial which was overruled by the trial court.
The sole assignment of error is the overruling of appellants' third amended motion for a new trial.
The motion for a new trial contains thirty-one specifications of error.
Under specifications 8 and 9 appellants assert that the court erred in refusing to give defendants' peremptory instructions A-1 to A-5, both inclusive, and peremptory instructions B-1 to B-5, both inclusive. The giving of peremptory instructions A-1 to A-5 was requested by the defendants at the close of plaintiff's evidence; and the giving of peremptory instructions B-1 to B-5 was requested by the defendants at the close of all the evidence. Said instructions in substance requested that the five allegations of negligence be withdrawn from the consideration of the jury.
The appellants' specific assertion of error in the refusal to give these peremptory instructions is that the record does not disclose substantial evidence of probative value, or any inference that might be drawn therefrom, from which the [138 INDAPP 145] jury could have found that the appellants committed any of the five alleged acts of negligence.
The prevailing rule as to the giving of peremptory instructions is that a trial court may properly direct a verdict for the defendant where the evidence submitted by the plaintiff wholly fails to establish any cause of action in his favor under the issues; or where the evidence submitted by the plaintiff affords no basis for recovery in favor of the plaintiff; or where the evidence most favorable to the plaintiff, together with all reasonable inferences which a jury might draw therefrom, is insufficient to establish one or more facts essential to plaintiff's right of recovery or insufficient to sustain a verdict in his favor. See, West's I.L.E., Vol. 28, Trial, Secs. 136 and 137.
In Garr v. Blissmer et al. (1962), 132 Ind.App. 635, 177 N.E.2d 913, (Transfer Denied), this court approved the rule as announced in West's I.L.E., Vol. 28, Sec. 137, pp. 133, 134 and 135, which states the rule concerning the giving of peremptory instruction for a defendant to be as follows:
'It is improper for the court to instruct the jury to return a verdict for the defendant when the facts established by the evidence are such that to warrant such conclusion by the court, the court would have to weigh the evidence or [138 INDAPP 146] judge as to the credibility of the witnesses.' (Citations omitted)
In the case at bar the appellants introduced no evidence except an agreed stipulation of facts to the effect that if the defendant-appellant Thorson had been present he would have testified in substance that the collision, described in the plaintiff-appellee's complaint was caused by the blocking of the right half of the highway by vehicles stopped on said highway and, that upon seeing said stopped vehicles, said defendant-appellant Thorson did all within his power to avoid said accident. All other evidence concerning the collision in question was submitted by the appellee.
Applying the rule announced above to the case at bar, it is our opinion, from an examination of the record evidence, that there was substantial evidence of a probative value, and from which inferences might be drawn, to support the five alleged acts of negligence; and therefore, the trial court did not err in refusing to give peremptory instructions A-1 to A-5, both inclusive, and instructions B-1 to B-5, both inclusive.
The appellants next discussed in their argument seven specifications of error numbersed 10, 11, 12, 13, 14, 15 and 16 alleging generally therein that the court erred in giving appellee's instructions numbered 2, 3, 4, 5, 6, 7 and 7A respectively.
Appellants' specification No. 10 relates to appellee's instruction No. 2 which reads as follows:
'The court instructs the jury that at all times complained of in the plaintiff's complaint there was a statute of the State of Indiana in full force and affect which provided, in part as follows:
'Drivers of vehicles proceeding in opposite directions which pass each other on the right and upon roadways having width for not more than one line of traffic in each direction, each driver shall give to the other at least one-half of the main travelled portion of the roadway as nearly as possible.'
[138 INDAPP 147] 'Therefore if you find from a fair preponderance of the evidence that the defendants, without valid excuse, violated this statute or failed to comply with its requirements, that in itself is prima facie evidence of negligence on the part of said defendants, and if you further find that such negligence was the sole proximate cause of plaintiff's injuries and damages, if any, then in that event your verdict should be for the plaintiff, James A. Powers, and against the defendants, Lyle A. Thorson and Kampo Transit, Incorporated.'
The appellants' specific objection to this instruction is as follows:
It is apparent that this instruction is based on an Indiana statute, the same being Burns Indiana Statutes 47-2011. It is a well settled principle of law in this state that the violation of a regulatory statute is prima facie evidence of negligence which must be overcome with proof that it was impossible to comply with the statute because of circumstances beyond the control of the driver, and which were in no way occasioned by any negligence on his part.
In Jones v. Cary (1941), 219 Ind. 268, 284, 37 N.E.2d 944, 951, the Supreme Court, speaking through Judge Swaim, said as follows:
[138 INDAPP 148] The appellants further object to said instruction because the instruction contains the exception 'without valid excuse.' It appears that the use of such exception is favorable to the appellants and permits the jury to know that the appellant Thorson could violate ...
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