259 N.E.2d 450 (Ind.App. 1970), 1169A200, Shelby Nat. Bank v. Miller

Docket Nº1169A200.
Citation259 N.E.2d 450, 147 Ind.App. 203
Party NameThe SHELBY NATIONAL BANK, Administrator of the Estate of Ellen L. Bowles, Deceased, Appellant, v. Hascal D. MILLER, Appellee.
Case DateJune 15, 1970
CourtCourt of Appeals of Indiana

Page 450

259 N.E.2d 450 (Ind.App. 1970)

147 Ind.App. 203

The SHELBY NATIONAL BANK, Administrator of the Estate of

Ellen L. Bowles, Deceased, Appellant,

v.

Hascal D. MILLER, Appellee.

No. 1169A200.

Appellate Court of Indiana, Division No. 2.

June 15, 1970

Rehearing Denied Aug. 6, 1970.

Page 451

[Copyrighted Material Omitted]

Page 452

[Copyrighted Material Omitted]

Page 453

[147 Ind.App. 204] Ice, Miller, Donadio & Ryan, Indianapolis, Phillip W. Brown, Brunner, Brown & Brunner, Shelbyville, for appellant.

C. Wendell Martin, Bredell, Martin & McTurnan, Indianapolis, for appellee.

SHARP, Judge.

This action for wrongful death was brought by the Plaintiff-Appellant, Shelby National Bank, Administrator of the Estate of Ellen L. Bowles, deceased, against the Defendant-Appellee, Hascal D. Miller, by the filing of a complaint in one legal paragraph. The Appellee filed an answer in denial under Rule 1--3 of the Rules of our Supreme Court. By agreement the case was tried before a jury on the issues pertaining to negligence alone.

The Complaint alleged that the Defendant was operating an automobile in a northwesterly direction on Interstate 74 at a point near the bridge crossing Brandywine Creek, at approximately 6:20 o'clock A.M. on November 7, 1967. The Complaint further alleges that one Charles Davis had driven a truck which had collided with a guard rail near said bridge and that said truck of Charles Davis was protruding into the right half of the traveled portion of the northwest bound lane of said highway and was in a stalled position. It is further alleged that the truck of said Charles Davis, at said time and place, did not have lights burning on it. Immediately thereafter one Harold Brewer was driving a pickup truck in a northwesterly direction near said point and passed the truck of Charles Davis previously referred to. Harold Brewer drove his pickup truck at the right of the traveled portion of said highway leaving his headlights and taillights lighted and returned to the truck of Charles Davis. Immediately thereafter one Donald Rich was operating a semi-truck tractor [147 Ind.App. 205] near said point in a northwesterly direction and drove past both the vehicle of Charles Davis and Harold Brewer and thereafter parked said semi-tractor to the right of the traveled portion of said highway and returned to the immediate vicinity of the truck of Charles Davis. The semi-tractor truck was equipped with headlights and taillights and additional lamps including flashing amber lights to the rear which were operating when the semi-tractor truck was parked. At the time it was dark and snowing and the bridge in question was covered with ice, sleet and snow. At such time it is alleged that the decedent, Ellen L. Bowles, was driving a 1962 Corvair in a northwesterly direction over said highway and across said bridge and that her automobile skidded into the stalled truck operated by Charles Davis and that as a result of the collision between the 1962 Corvair of Ellen L. Bowles and the truck of Charles Davis the 1962 Corvair stopped on the traveled portion of said highway and extended across the right half of the northwest bound lane and into the south half for a distance of approximately four feet. Ellen L. Bowles immediately alighted from her automobile and walked across said highway. The Complaint further alleges that the Defendant-Appellee drove a 1967 Pontiac automobile in a northwesterly direction on said highway and across said bridge at a time when the decedent Ellen L. Bowles was near the left edge of the traveled portion of said highway, at which time the 1967 Pontiac automobile operated by the Appellee-Defendant struck the body of Ellen L. Bowles resulting in her immediate death. The specifications of negligence in the Complaint are contained in rhetorical paragraph 10 as follows:

'That said defendant, Hascal D. Miller was guilty of one or more of the following specific acts of negligence, which was the sole proximate cause of the death of Ellen L. Bowles as hereinabove alleged.

(a) That said defendant, Hascal D. Miller, at said time and place, drove and operated his aforesaid automobile at a

Page 454

speed which was greater than was reasonable and [147 Ind.App. 206] prudent under the conditions then and there existing, as hereinabove described, and having regard to the actual and potential hazards then and there existing and hereinabove described, towit: Sixty (60) miles per hour.

(b) That said defendant, Hascal D. Miller, carelessly and negligently failed to drive his aforesaid automobile at an appropriately reduced speed when special hazards existed with respect to other traffic as hereinabove alleged.

(c) That said defendant, Hascal D. Miller, carelessly and negligently failed to slow or stop his aforesaid automobile to avoid running into and against said Ellen L. Bowles when defendant saw, or in the exercise of ordinary care could have seen, said Ellen L. Bowles in time to have avoided running into and against her.

(d) That said defendant carelessly and negligently failed to turn his car to the right or left in order to avoid running into and against said Ellen L. Bowles when said defendant, Hascal D. Miller, saw, or by the exercise of ordinary care could have seen, said Ellen L. Bowles in time to have avoided hitting her.

(e) That said defendant, Hascal D. Miller, negligently and carelessly failed to keep a proper lookout for pedesterians and other automobiles on said road and especially this plaintiff when in the exercise of ordinary care said defendant, Hascal D. Miller, saw or could have seen the hazardous condition existing at said time and place as hereinabove described.

(f) That said defendant, Hascal D. Miller carelessly and negligently failed to see and observe that at said time and place the roadway ahead of him was blocked, when in the exercise of ordinary care said defendant, Hascal D. Miller, could have seen and observed said condition then and there existing as hereinabove described.

(g) That said defendant, Hascal D. Miller, negligently and carelessly failed to heed the flashing blinker lights on the truck-tractor, as hereinabove described, when in the exercise of ordinary care such lights should have warned said defendant, Hascal D. Miller, of the condition existing on said highway at said time and place, as hereinabove alleged.' (our emphasis)

The Appellant's summary of the evidence covers 77 pages of its brief. Since there is no specification in Appellant's Motion for New Trial that the decision is contrary to law, [147 Ind.App. 207] we will not burden this opinion with a summary of it but will refer to items of evidence where appropriate in our consideration of the Appellant's 25 specifications of error.

Appellee's factual version of the collision covers one page of his brief as follows:

'This controversy arose as a result of the death of Ellen L. Bowles on Interstate Highway I--74 about five miles north of Shelbyville, Indiana. The accident occurred at about 6:30 A.M., November 7, 1968. It was dark at the time, and although the highway had not been slick or slippery as the defendant, Hascal D. Miller drove from his home in Shelbyville, toward his place of employment in Indianapolis, to his surprise he discovered that the highway on the bridge over Brandywine Creek was icy, and was somewhat slippery for about 300 feet north of the bridge. As the defendant, driving at 60 m.p.h. crossed the bridge, he suddenly saw in the highway before him two stalled vehicles with no lights burning. He maneuvered his car to the left for about 200 feet, passed the stalled vehicles without mishap, but then saw suddenly in front of him by about 15 to 30 feet, the plaintiff's decedent walking on the highway. She had been the driver of one of the stalled vehicles.

Page 455

The defendant was unable to avoid striking her, and she was killed instantly.

Ellen L. Bowles had preceded the defendant by about 20 seconds and had slid on the slippery highway into a van-type truck previously stopped at the right edge of the highway. In the course of her slide, she had put out a warning flare which had been placed south of the stopped van-type truck. After that collision, she got out of her automobile and was walking north on the highway when the defendant Miller came along.'

The case was tried by jury resulting in a verdict for the Defendant-Appellee upon which judgment was entered. The Plaintiff-Appellant filed its Motion for a New Trial containing 25 specified errors at law, all of which are argued in its Brief. The trial court overruled the Motion for a New Trial and such ruling is the sole assignment of error here. Counsel for both parties have filed excellent briefs and made helpful and informative oral arguments in this case.

The first specification of error relates to a motion made [147 Ind.App. 208] by the Appellant at the Commencement of the trial and not in the presence of the jury to strike out the word 'sole' from the second line of rhetorical paragraph 10 of its Complaint which has been emphasized by our italics.

In Paxton v. Ferrell, Ind.App., 244 N.E.2d 439 (1969), we determined under a very similar procedural situation that the refusal by the trial court to permit the amendment of pleadings after trial commenced and before final judgment was not such an abuse of discretion to necessitate our reversal. It is a well established rule that the trial court may use its discretion in amending or refusing permission to amend pleadings during trial and before final judgment. Unless there is an abuse of this discretion and the complaining party has been harmed and his substantial rights taken from him, the trial court's action will not be disturbed. See also, Oppenheimer et al. v. Craft, 132 Ind.App. 452, 175 N.E.2d 715 (1961).

In General Outdoor Adv. Co. v. LaSalle...

To continue reading

Request your trial