Anti-Mite Engineering Co. v. Peerman
| Decision Date | 04 February 1943 |
| Docket Number | 17054. |
| Parties | ANTI-MITE ENGINEERING CO. v. PEERMAN. |
| Court | Indiana Appellate Court |
James L. Murray, of Indianapolis, for appellant.
Lewis E. Marine, of Indianapolis, for appellee.
Appellee Edward H. Peerman, an employee of the appellant, the Anti-Mite Engineering Company, was injured in an automobile collision with a car driven by a state policeman at the intersection of Pleasant Run Boulevard and Sherman Drive, in the city of Indianapolis, Indiana.
The evidence discloses that Sherman Drive runs north and south and that Pleasant Run Boulevard, a preferential street, runs in an easterly and westerly direction, but at the intersection here involved at an angle to the southeast and northwest. Appellee Peerman was traveling north on Sherman Drive in a light truck belonging to the appellant company. There was a stop sign on Sherman Drive, south of Pleasant Run Boulevard. Appellee testified that on the day of the accident, as he approached said Pleasant Run Boulevard, he looked east and saw no vehicle; that he slowed up before he reached the intersection, and crossed the south half of the Boulevard at a rate of from 5 to 8 miles per hour; that he had shifted gears and was in low gear; that just before the collision, and when he was about in the center of the intersection, he was attracted by the sound of a car like the brakes being set, and that he glanced to the right and slightly to the back of him and saw the police car coming down the boulevard three or four car lengths from him at about 50 or 60 miles per hour. He further testified that it was necessary to drive almost to the center of the boulevard before an automobile approaching from the southeast was visible.
The evidence further discloses that Adolph Frankovich, a state policeman, whose car was involved in the accident, was traveling westwardly on the boulevard, and that he was not using his red light or siren because he was going to the garage to have the car lubricated. Officer Frankovich according to his statement, seeing appellee's truck proceed across the boulevard without stopping in obedience to the stop sign, applied his brakes in order to avoid a collision, but his car struck the right rear fender and right rear wheel of appellee's truck and caused said truck to turn over, resulting in an injury to appellee's left hand. The truck at the time of the collision was crossing the north lane of the south drive of Pleasant Run Boulevard. After the collision the truck was on its left side headed north, 17 feet north of the north boundary line of said boulevard, and approximately 37 feet north of the point of collision.
The evidence is conflicting as to the rate of speed of Mr Frankovich's car. Appellee testified that Frankovich was traveling from 50 to 60 miles per hour, but Frankovich testified that the rate of speed of his car was from 25 to 30 miles per hour before he applied his brakes. This was corroborated by the driver of a truck approaching from the north, who also testified that appellee approached and crossed the intersection at a like rate of speed. The evidence shows that skid marks were made by the car operated by Frankovich for a distance of 55 feet immediately east of the point of collision. Frankovich testified that the marks were due to the soft tarvia surface by reason of the temperature of the day of the accident, and also stated that the skid marks farthest to the east were made when he applied his brakes when he saw a truck approaching from the north and at a time when he was apprehensive that the operator would not stop for the preferential boulevard.
He also testified that he could make a gradual stop traveling 35 miles per hour without skidding 50 feet. The evidence as to appellee's failure to stop at Pleasant Run Boulevard is undisputed.
It was stipulated by the parties that appellee was arrested, tried, found guilty, and fined for his failure to stop at a through street.
Appellee filed his application before the Industrial Board of Indiana against the appellant for adjustment of his claim for compensation for the injuries he received as a result of the collision hereinbefore set out. The appellant filed a special answer to the application, setting up the defense that appellee's injury was due to his commission of a misdemeanor.
The cause was submitted to the Industrial Board for hearing and the hearing member found that appellee's injury was due to his commission of a misdemeanor, and appellee was denied recovery.
Upon review, the Full Industrial Board found that as a result of the accident, it was necessary to amputate the middle, ring and little fingers of appellee's left hand, and that appellee had sustained a permanent partial impairment of the left hand to the extent of 75% of the hand below the elbow. A majority of the Full Board found that appellee's injury was not due to his commission of a misdemeanor, and awarded him compensation.
It is from this award of the Full Industrial Board that this appeal is brought. Appellant contends that there was no evidence presented which supports the finding of the majority of the Full Board, and that the record discloses conclusively that the injuries suffered by appellee were due to his failure to stop before entering a preferential street.
By legislative enactment in 1939 there were established certain vehicular traffic regulations, among which is the following:
A subsequent section of said act makes the violation of the above provisions a misdemeanor.
Burns' 1933, Section 40-1208 provides: "No compensation shall be allowed for an injury or death due to the employee's * * * commission of a felony or misdemeanor."
Appellee and appellant agree that the commission of a misdemeanor does not prevent a recovery of compensation unless the misdemeanor was the proximate cause of the injury.
This court, in the case of Wood v. Snyder, 1925, 83 Ind.App. 31, 147 N.E. 314, held that the commission of a misdemeanor does not prevent a recovery of compensation if the injury was neither due to nor caused by a misdemeanor.
The sole question for determination in this case is whether the commission of the misdemeanor by appellee must be said to have been the proximate cause of the collision in which appellee was injured.
When the facts relating to proximate cause are undisputed, and are of such a character that only a single inference can be drawn therefrom by any fair and reasonable mind, the question...
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