American Carloading Corp. v. Gary Trust & Sav. Bank

• Decision Date: 11 March 1940
• Docket Number: 27373.
• Citation: 25 N.E.2d 777,216 Ind. 649
• Court: Indiana Supreme Court
• Parties: AMERICAN CARLOADING CORPORATION v. GARY TRUST & SAVINGS BANK.

25 N.E.2d 777

216 Ind. 649

AMERICAN CARLOADING CORPORATION v. GARY TRUST & SAVINGS BANK.

No. 27373.

Supreme Court of Indiana

March 11, 1940

[Copyrighted Material Omitted]

Appeal from Starke Circuit Court; Albert C. Chipman, Special Judge.

Oscar B. Thiel and Ray C. Thomas, both of Gary, and William J. Reed, of Knox, for appellant.

Harry Long and John Ruberto, both of Gary, and Orville Nichols, of Knox, for appellee.

TREMAIN Judge.

This was an action by the appellee, administrator of the estate of Rose Garritano, deceased, by a complaint in one paragraph against the appellant for damages based upon the negligent operation of a motor truck. There was a trial by a jury which returned a verdict for the appellee in the sum of $8,000, and with its general verdict answered certain interrogatories submitted by the court. Appellant filed motions to strike out parts of the complaint and to separate the complaint into paragraphs, both of which were overruled. The issue was closed by an answer in general denial. Judgment was rendered upon the verdict and the appellant filed a motion for a new trial.

Error is predicated upon the ruling of the court in refusing to strike out parts of the complaint and separate the same into paragraphs, overruling the motion for judgment on interrogatories notwithstanding the general verdict, and overruling its motion for a new trial, in which appellant asserts that the verdict is not sustained by the evidence and is contrary to law, that the damages assessed are excessive that the court erred in admitting certain testimony of the son of the decedent, and in giving certain instructions tendered by appellee and in refusing to give those tendered by appellant.

It is alleged in the complaint that on the night of December 30 1936, the appellant was the owner of a motor truck operated by one of its employees upon 5th Avenue in the city of Gary; that 5th Avenue extended in a general east and west direction; that about 15 minutes after midnight the appellant's motor truck was driven east at the high and dangerous rate of speed of 60 miles per hour; that at said time the decedent and her husband were walking east on the right-hand side of that portion of said avenue provided for eastbound traffic, and about 2 feet from the berm; that at the place of the injury, and for a long distance both east and west, 5th Avenue is provided with two lanes of traffic, each consisting of a cement pavement 20 feet wide; that a double street car track operated between the two lanes, and was 18 feet wide and unimproved; that at the place of the injury and for many blocks in each direction no sidewalks were provided for pedestrians, and was not in a built-up section of the city; that a berm on the south side of the traveled portion of the avenue was constructed of slag and coarse stone; that approximately 600 yards west of the place of the accident the highway is crossed by railroad tracks; that it is a much traveled thoroughfare; that at the time the defendant's employee carelessly and negligently failed to watch the road ahead or to heed the fact that the decedent was walking east in front of the motor truck and in its immediate course; that the driver of the truck failed to slow down or to notify the decedent of its approach in any manner, either by sounding a horn or by giving any other signal or warning, but recklessly, carelessly, and unlawfully drove the same with great force and violence upon and against decedent, which resulted in her immediate death.

Several allegations of the complaint are by way of recital and state conclusions of the pleader which the appellant asked the court to strike out and reject for that reason. It is generally recognized that such allegations are not prejudicial, and the refusal of the court to sustain a motion to strike does not constitute reversible error. The sufficiency of the complaint was not tested by demurrer and would be sufficient without the objectionable allegations.

The appellant's motion to separate the complaint into paragraphs points out that it is charged: (1) The motor truck was operated at a high and dangerous rate of speed. (2) The defendant had no control of the motor truck because of the high and dangerous rate of speed. (3) The defendant carelessly and negligently failed to watch the road ahead to the motor truck. (4) The defendant failed to note the fact that the decedent was in the immediate course of the motor truck. (5) The defendant carelessly and negligently failed to slow the speed or to notify the pedestrian of its approach. The appellant asserts that each of the specifications purports to state a separate cause of action, and, therefore, the complaint should be in separate paragraphs. This court has always recognized that in personal injury cases the plaintiff may plead the several acts of negligence committed by the defendant in either a single or separate paragraphs. And if several grounds of negligence are pleaded in a single paragraph, a judgment will be sustained if one of the grounds has been established by the evidence. Knickerbocker Ice Co. v. Gray, 1908, 171 Ind. 395, 84 N.E. 341.

Appellant predicates error upon the refusal of the court to render judgment in its favor upon the interrogatories answered by the jury notwithstanding the general verdict. The jury's answers to the interrogatories gave the width of the paved street and the location of the decedent at the time she sustained the injuries, stated that she was walking upon the part of the highway reserved for eastbound traffic; that there was no evidence upon the subject of whether or not she looked for approaching traffic from the west or that she saw the truck approaching, but answered that she could have seen the truck approaching had she looked; that the truck was not traveling 60 miles per hour, but was traveling in excess of 25 miles per hour immediately prior to the accident; that the operator of the truck did not keep a lookout ahead of his truck; that decedent was in plain view of the driver at the time; that the driver could have stopped the truck and avoided the accident; that the defendant operated his truck carelessly and negligently at the time; that the decedent was on the right-hand or south portion of the pavement at the time of the injury and acted as a reasonably prudent person under the circumstances.

The appellant asserts that the answers to the interrogatories established contributory negligence upon the part of the decedent in failing to keep an outlook for approaching vehicles; that she was guilty of negligence as a matter of law in walking upon the one-way traffic lane in the night-time and failing to heed approaching traffic from the rear; that the driver of the truck was not required to discover the position of the appellee's decedent because he had a right to assume that the highway ahead of him was clear.

The appellant bases its argument in part upon the erroneous assumption that the jury answered that the decedent did not look for approaching trucks, whereas the answer to the interrogatories stated that there was no evidence upon the subject. Appellant predicates contributory negligence upon the part of the decedent by assuming that the answers of the jury to interrogatories disclosed that decedent failed to look for approaching vehicles, and that she was guilty of contributory negligence by walking on the traveled portion of the street.

The statute in this state prescribing the duties of a motorist in approaching a pedestrian walking on the traveled part of a highway provides that: 'In approaching a pedestrian who is walking or standing upon the traveled part of any highway, and not upon a sidewalk, and upon approaching an intersecting highway or curve or a corner in a highway where the operator's view is obstructed, every person driving or operating a motor vehicle or motor-bicycle shall slow down and give a timely signal with the bell, horn or other device for signaling.' Section 47-513, Burns' Ind.St. 1933, Sec. 11168, Baldwin's 1934.

The burden was upon the appellant to establish by proper evidence the contributory negligence of the decedent. A search of the record fails to disclose such proof. The interrogatories answered by the jury are silent upon that subject. Those pertaining to contributory negligence were answered, 'No evidence.' Further, contributory negligence cannot be assumed as a matter of law from the fact that the decedent was walking upon the right side of the traveled portion of the lane provided for traffic under the...