Beckstein v. Sayler

• Decision Date: 27 January 1932
• Docket Number: 14,200
• Parties: BECKSTEIN v. SAYLER, ADMINISTRATOR
• Court: Indiana Appellate Court

179 N.E. 581

93 Ind.App. 686

BECKSTEIN v. SAYLER, ADMINISTRATOR

No. 14,200

Court of Appeals of Indiana

January 27, 1932

From Huntington Circuit Court; Eben Lesh, Special Judge.

Action by Arthur D. Sayler as administrator of the estate of Calvin Garwood against Paul Bechstein. From a judgment for plaintiff, the defendant appealed.

Affirmed.

Fred H Bowers, Milo N. Feightner and Lee M. Bowers, for appellant.

Lawrence E. Carlson and Herbert B. Spencer, for appellee.

OPINION

CURTIS, J.

This was an action commenced in the Huntington Circuit Court by Arthur D. Sayler, as administrator of the estate of Calvin Garwood, deceased, to recover damages for the death of said decedent, alleged to be the result of a collision between appellant's automobile and a bicycle on which the decedent was riding on Briant Street in the city of Huntington, Indiana, on the night of June 24, 1929. The complaint was in one paragraph, to which the appellant filed a general denial. Upon the issues thus formed, there was a trial before a jury, who returned a verdict in favor of the appellee against the appellant in the sum of $ 5,000. There was a motion for a new trial filed and overruled and an exception taken. The court entered judgment upon the verdict and in accordance therewith.

The only error assigned is the alleged error of the court in overruling the appellant's motion for a new trial. The motion for a new trial contains 14 causes or grounds, but the appellant has not discussed under his propositions, points and authorities any of these alleged causes for a new trial except the first two, and, therefore, all other causes are waived. In fact, in the oral argument of the case the appellant conceded that no other causes need be considered except the first two, which are as follows: (1) "The verdict of the jury is contrary to law. (2) The verdict of the jury is not sustained by sufficient evidence." We will, therefore, consider only these two alleged errors.

It becomes our duty, under the two alleged errors presented, to examine the evidence in the case to determine whether or not the verdict is sustained by sufficient evidence or whether or not it is contrary to law. But, in doing this, it is to be borne in mind that this court will not weigh conflicting evidence and substitute its judgment therein for the verdict of the jury, if, under the issues, there is competent evidence or legitimate inferences that may be drawn therefrom to sustain the verdict. This statement is so axiomatic as not to require the citation of authority in support thereof. The complaint, among other things, alleged that the appellee's decedent was riding a bicycle north on Briant Street in the city of Huntington, Indiana, at about 8:30 p. m. on June 23, 1929, in a careful manner on the right side of the street; that the appellant, while operating his automobile in the same direction, carelessly and negligently operated the same at a high and dangerous rate of speed, to wit, 40 miles per hour; that, by reason of the appellant's negligence, said automobile struck the decedent's bicycle in the rear with such force and violence as to crush decedent's bicycle, violently throwing the decedent to the cement pavement and running the front wheel over his body and dragging him 40 feet, causing the injury from which he died the next day. The complaint was answered by a general denial.

The appellant contends that the decedent was guilty of contributory negligence which was the proximate cause of the injury, in that, as the appellant asserts, he did not have his bicycle equipped with a red reflector as required by law. It is true that the law requires a bicycle such as the...