Layman v. Hall Omar Baking Co.

Decision Date18 April 1966
Docket NumberNo. 1,No. 20164,20164,1
PartiesGertrude LAYMAN, Appellant, v. HALL OMAR BAKING COMPANY and Donald McCarter, Appellees
CourtIndiana Appellate Court

[138 INDAPP 674] Berry, Kincade & Miller, Terre Haute, Branigin, De Moss & Jones, Franklin, for appellant.

John R. Hiner, Grace M. Curry, Indianapolis, James B. Young, Franklin, for appellee. Pogue & Young, Franklin, Bingham, Summers & Spilman, Indianapolis, of counsel.

WICKENS, Judge.

By a petition for rehearing it is urged that appellant was guilty of contributory negligence as a matter of law, and that we have failed to consider appellees' argument thereon.

We have now given additional consideration to the subject of contributory negligence. Again, it is the obligation of this court to consider only that evidence favorable to the party against whom the motion was directed and the reasonable inferences therefrom.

[138 INDAPP 679] All facts which the evidence tends to prove must be accepted as true, and the court must draw against the party requesting the instruction all inferences which a jury might reasonably draw. If a witness makes contradictory assertions we do not undertake to determine which are true. Kraus v. Kraus, Executor, Etc. (1956), 235 Ind. 325, 329, 132 N.E.2d 608; State Farm Life Insurance Co. v. Spidel (1964), Ind., 202 N.E.2d 886, 888, 889.

Contributory negligence is determined and governed by the same tests and rules as negligence of the defendant. Negligence which is so clear and palpable that no verdict could make it otherwise is said to be negligence as a matter of law. Jenney Electric Mfg. Co. v. Flannery (1912), 53 Ind.App. 397, 408, 98 N.W. 424.

Before we could affirm the judgment because of contributory negligence as a matter of law we would be required to find that the trial court had before it evidence, without conflict, which led but to one conclusion, that the plaintiff was herself guilty of negligence which contributed to and caused or partly caused her own injury.

We fail to find evidence or reasonable inferences to be drawn from the evidence to establish such hypothesis. Additionally we cannot say as a matter of law that the negligence, if any, of the plaintiff was a proximate cause of her injury.

Therefore petition for rehearing is denied.

PRIME, C.J., and CARSON and FAULCONER, JJ., concur.

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7 cases
  • Mamula v. Ford Motor Co., 371A49
    • United States
    • Indiana Appellate Court
    • December 6, 1971
    ...from such evidence. Layman v. Hall Omar Baking Co., 138 Ind.App. 673 (7 Ind.Dec. 459), 213 N.E.2d 726, rehearing denied (8 Ind.Dec. 186), 215 N.E.2d 692 (1966); Monon R.R. v. New York Central R. Co., 141 Ind.App. 277 (10 Ind.Dec. 644), 227 N.E.2d 450 (1967); and Beem v. Steel, 140 Ind.App. ......
  • Kroger Co. v. Haun
    • United States
    • Indiana Appellate Court
    • August 31, 1978
    ...governed by the same test and rules as defendant's negligence. Layman v. Hall Omar Baking Co. (1966) 138 Ind.App. 673, 213 N.E.2d 726, 215 N.E.2d 692. We believe the actual state of the law to be, absent extenuating circumstances such as age or mental incompetency, that In Frankfort v. Owen......
  • Smith v. Chesapeake & Ohio R. Co.
    • United States
    • Indiana Appellate Court
    • May 30, 1974
    ...Richey v. Sheaks (1967), 141 Ind.App. 423, 228 N.E.2d 429; Layman v. Hall Omar Baking Co. (1965), 138 Ind.App. 673, 213 N.E.2d 726, 215 N.E.2d 692; Sparks v. Baldwin (1964), 137 Ind.App. 64, 205 N.E.2d 173; Bradford v. Chism (1963), 134 Ind.App. 501, 186 N.E.2d 432. Other language with esse......
  • Landers v. McComb Window & Door Co.
    • United States
    • Indiana Appellate Court
    • June 23, 1969
    ...See also, Coleman v. DeMoss, Ind.App., 246 N.E.2d 483 (1969); Layman v. Hall Omar Baking Co., 138 Ind.App. 673, 213 N.E.2d 726, 215 N.E.2d 692 (1966); Hollowell v. Greenfield, Ind.App., 216 N.E.2d 537 (1966); Kampo Transit, Inc. v. Powers, 138 Ind.App. 141, 211 N.E.2d 781 In this case there......
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