Boswell v. Washington

• Decision Date: 14 November 1966
• Docket Number: No. 1,No. 20227,20227,1
• Citation: 9 Ind.Dec. 346,221 N.E.2d 184,140 Ind.App. 273
• Parties: Gladys BOSWELL, Appellant, v. Samuel E. WASHINGTON, Jr., Appellee
• Court: Indiana Appellate Court

Page 184

221 N.E.2d 184

140 Ind.App. 273

Gladys BOSWELL, Appellant, v. Samuel E. WASHINGTON, Jr., Appellee.

No. 20227.

Appellate Court of Indiana, Division No. 1.

Nov. 14, 1966.

Transfer Denied Feb. 7, 1967.

John T. Hume, III, Indianapolis, for appellant, Smith & Jones, Indianapolis, of counsel.

Erle A. Kightlinger, Howard, J. DeTrude, Jr., Indianapolis, for appellee, Armstrong, Gause, Hudson & Kightlinger, Indianapolis, of counsel.

FAULCONER, Judge.

Appellant brought suit against appellee for damage alleging that she was struck by a motor vehicle being operated by appellee while she, appellant, was crossing a street within a marked crosswalk. At the conclusion of plaintiff-appellant's evidence, upon motion of appellee, the court gave an instruction for a finding in favor of appellee. Judgment was duly entered thereon; appellant's motion for new trial was overruled, and this appeal followed.

This court has held in many cases that a peremptory instruction for a defendant will be upheld only if one or more of the material allegations of the complaint essential to recovery are not supported by evidence of probative value or by any reasonable inference that may be drawn therefrom. Bradford v. Chism (1963), 134 Ind.App. 501, 505, 186 N.E.2d 432 (Trans. denied); Phares v. Carr (1952), 122 Ind.App. 597, 600, 106 N.E.2d 242 (Trans. denied). 2 F.W. & H., Ind.Tr. & App.Pract. (1963 P.P.), § 1661, p. 96.

'It is a familiar rule that in considering the appropriateness of a directed verdict, the court must accept as true all facts which the evidence tends to prove and draw, against the party requesting such instruction, all inferences which the jury might reasonably draw, * * *.'

Vann v. Vernon General Ins. Co. (1956), 126 Ind.App. 503, 507, 133 N.E.2d 70, 72, 134 N.E.2d 235; Tabor v. Continental Baking Co. (1942), 110 Ind.App. 633, 639, 38 N.E.2d 257 (Trans. denied). 2 F.W. & H., Ind.Tr. & App.Pract. (1963 P.P.), § 1661, Comment 2, p. 97.

The evidence produced in support of the material allegations of appellant's complaint must be 'substantial' evidence as differentiated from a mere 'scintilla.' Burke v. Burke (1963), 135 Ind.App. 235, 242, 191 N.E.2d 530, 533 (Trans. denied).

The undisputed evidence in the record before us shows that in downtown Indianapolis, East Market Street runs east and west, and is 60 feet wide, divided in half by double yellow lines. Each half is divided into three equal lanes by white lines painted thereon. That midway between the intersections of East Market Street and North Delaware Street, and East Market Street and North Pennsylvania Street, is an alley known as North Talbot Street, running north and south and intersecting East Market Street at right angles. That running across East Market Street in a north and south direction is a marked crosswalk, the west line of such crosswalk running along the east side of North Talbot Street.

One of appellant's allegations of negligence is that appellee failed to yield the right-of-way to appellant, a pedestrian, in a crosswalk, 'contrary to statute made and provided.'

Acts 1939, ch. 48, § 83, p. 289, § 47--2032, Burns' 1965 Replacement, provides as follows:

'(a) When traffic control signals are not in place or not in operation, the driver of a vehicle shall yield the right of way, slowing down or stopping if need be, so to yield to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger, but no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield. This provision shall not apply under the conditions stated in section 84--b (§ 47--2033(b)).

'(b) Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.'

Acts 1939, ch. 48, § 85, p. 289, § 47--2034, Burns' 1965 Replacement, provides as follows:

'Notwithstanding the foregoing provisions of this act, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon a roadway and shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway.'

Secton 47--2032, supra, imposes an absolute duty upon the driver to yield the right-of-way to a pedestrian under the circumstances and with the exceptions detailed therein, and § 47--2034, supra, imposes upon the operator of a motor vehicle the duty to anticipate the presence of pedestrians lawfully using the highway and to keep a proper lookout and have the vehicle under control in order to avoid a collision with such person. Failure to do so constitutes prima facie evidence of negligence. Neuwelt v. Roush (1949), 119 Ind.App. 481, 497, 499, 85 N.E.2d 506 (Trans. denied); Ft. Wayne Transit, Inc. et al. v. Shomo, etc. (1957), 127 Ind.App. 542, 558, 143 N.E.2d 431.

Appellee contends that there is no evidence showing, or from which a jury could reasonably infer, that appellant was within the crosswalk. With this contention we cannot agree. Appellant's own testimony was that she walked west on the sidewalk adjacent to the south curb lane of East Market Street. That intending to cross to the north side of East Market Street she stopped at the southeast corner of East Market Street and North Talbot Street. That before stepping from the curb into East Market Street she looked to the west then to the east and saw no traffic. That she saw a white Cadillac automobile in the lane next to the south curb of East Market Street headed east, the back of which was east of the crosswalk. That she proceeded to cross East Market Street; that she passed another pedestrian coming from the north; that when she was nearly to the center line she looked to the east; and that she was struck and remembers nothing thereafter.

The Police Officer investigating the accident testified that when he arrived he found appellant lying just east of the crosswalk and on the north side and near the rear of the white Cadillac. Appellant's position was confirmed by the driver of the white Cadillac.

'As to the negligence of the appellant, of course it was incumbent upon appellee to prove that appellant was negligent in the respects charged in the complaint, but it was not necessary that such proof be made by direct evidence, as these facts may be made to appear either directly or circumstantially.'

(Emphasis supplied.) Pittsburgh, etc., R. Co. v. Edwards,...