Haney v. Meyer

• Decision Date: 28 April 1966
• Docket Number: No. 20241,No. 1,20241,1
• Citation: 139 Ind.App. 663,215 N.E.2d 886
• Parties: Gerald J. HANEY, Appellant, v. Robert B. MEYER, Appellee
• Court: Indiana Appellate Court

Page 886

215 N.E.2d 886

139 Ind.App. 663

Gerald J. HANEY, Appellant, v. Robert B. MEYER, Appellee.

No. 20241.

Appellate Court of Indiana, Division No. 1.

April 28, 1966.

Rehearing Denied June 1, 1966.

[139 INDAPP 664]

Kizer & Neu, Plymouth, for appellant.

Dale E. Custer, Gary, Stevens & Wampler, Plymouth, for appellee.

WICKENS, Judge.

A verdict below was rendered against appellant as damages for personal injuries received by appellee in a collision of two autos.

Defendant-appellant, Gerald J. Haney, was riding in the front seat of a Kaiser auto which was going west on a county highway approaching an unmarked intersection with another county road. On the other road appellee was driving a Studebaker auto such approaching the same intersection where a collision of the vehicles took place.

Although appellant was not driving, and despite the fact that the operator of the vehicle in which he was riding was exonerated by the verdict, the cause was tried and determined as though appellant was responsible for the vehicle's operation.

Because of the conclusion we have reached, it is unnecessary for us to elaborate on how in this case one who does not own the vehicle, is not operating it, nor is the employer of the driver, can be legally responsible. We think there are circumstances under which one who is present, actively participating or directing the operation of the vehicle may be liable for the things which he did or failed to do irrespective of what might have been done by the person behind the steering wheel, and regardless of the liability of the driver. 60 C.J.S. Motor Vehicle § 444.

[139 INDAPP 665] It is vigorously maintained by appellant that the verdict is not sustained by sufficient evidence.

Plaintiff-appellee was unable to relate any of the facts concerning the accident, his memory on that topic was a complete blank as a result of retrograde amnesia. Gerald Haney and Dolores Haney the driver, and a police officer who investigated the occurrence were the principle witnesses. Testimony and photographs were presented showing the condition of the vehicles and their location after the impact. Four children who were passengers in the Kaiser had no recollection of the facts. It should be noted that the trial was nearly eleven years after the collision and that a pretrial examination of Gerald, which is in the record, was not taken until more than six years after. This may explain, in part, the paucity of facts before the jury.

A summary follows of that evidence which we believe is most favorable to appellee. Appellee testified that he was driving in a southerly direction on a clear day at 55 mph. The county highway on which he was traveling and the intersection he was approaching were well known to him, he having traversed the route daily for some five months. He recalled passing familiar farms and the last crossroad before the intersection where the collision occurred. He was asked and specifically replied that he did not recall seeing the Kaiser car, nor did he recall putting on his brakes or blowing his horn. He knew that weeds did obstruct vision at that intersection. He did not recall looking to the right or left as he approached the intersection but his last recollection before the impact was when he was close to 500 feet north of the intersection. His next recollection was in the ambulance on his way to the hospital.

The testimony given by Gerald and Dolores was that he was 20 years old and she was 17; the other passengers were younger; Dolores had been driving that day five to ten minutes; she had no driver's license and may have never driven a car before; the view at the intersection was so obstructed by [139 INDAPP 666] weeds that they could not see until the engine of the car was out in the intersection. Very close to the intersection, Dolores who had been driving 30--35 mph applied her brakes and shifted into second gear. There were three persons in the front seat. Gerald was in the middle and both he and Dolores testifed to looking in both directioins. They saw nothing of the approaching car in time to do anything about it.

A former state patrolman, who had been the investigating officer, testified and identified photographs he had taken. He related that when he came on the scene about 15 minutes after the collision, the cars were just south of the intersection on the west side of the north and south road partially off the highway, the Studebaker being nearer to the intersection. The damage to the vehicles, he described and that which the photos showed, was confined to the right front side of the Kaiser beginning at about the center post and being restricted on the Studebaker to the entire front. This witness also testified that Gerald Haney on the day of the accident had said he was driving and that his speed at the time of the accident was 15 mph. He related that the speed limit at this unmarked intersection of two county roads was 'sixty-five miles per hour or safe and prudent.' And he confirmed that there were no traffic control signals at this intersection. The witness was permitted to relate that his report indicated that the driver of the Studebaker did...