Brueckner v. Jones, 1267
| Decision Date | 24 February 1970 |
| Docket Number | No. 2,No. 1267,1267,2 |
| Parties | Robert M. BRUECKNER, Appellant, v. Hilda JONES, Appellee. A 104 |
| Court | Indiana Appellate Court |
John R. Dollens, Scottsburg, for appellant.
George Gossman, Seymour, Ralph Hamill, John P. Price, Indianapolis, Gossman & Gossman, Seymour, Hamill & Price, Indianapolis, of counsel, for appellee.
This action was commenced by the Plaintiff-Appellee, Hilda Jones, against the Defendant-Appellant, Robert M. Brueckner, for personal injury damages under the Indiana Guest Statute, Burns' Indiana Statutes Annotated, § 47--1021. The case was tried by a special judge without a jury, resulting in a $20,000.00 judgment for the Plaintiff-Appellee. Appellant's Motion for a New Trial was overruled and this appeal resulted.
We must examine the factual record with all inferences in favor of the Appellee's judgment. The essential facts are that Appellee and her husband had been taken to Louisville, Kentucky, by the Appellant on December 8, 1963. The purpose of the trip was to get the Appellee's husband admitted in the Veterans Hospital. On the afternoon in question the Appellant was driving his automobile on its return trip from Louisville, Kentucky, to Vallonia, in Jackson County, Indiana. There is no dispute as to the status of Appellee as a guest of the Appellant. The day was cloudy. As they got closer to Vallonia it was snowing heavily. The accident in question occurred about six miles north of Salem, Indiana, on Indiana State Road 135, which is a hilly winding road. At the place of the accident the visibility was so limited as to obscure the path of the road. The automobile driven by Appellant skidded sidewise over the centerline of the road and collided with another automobile. The estimates of the speed of the Appellant's car just before the accident ranged from 35 to 40 miles per hour. There is no evidence that the Appellee or her husband ever protested or objected in any manner to the way in which Appellant drove from Louisville to the point of collision. The collision occurred just south of Kossuth, Indiana, where Indiana State Road 135 has a slight incline of about 2%. The Appellant's automobile weighed 2100--2200 pounds and had good tires. The road at the point of collision was 22 feet wide and asphalt. The Appellant's car had 'fishtailed' four or five times between Pekin, Indiana, and the point of collision. Carl Jones, husband of Appellee, testified:
'Q. Now, after the snow had started to fall and covered the roadway and it became slick as you testified, are you able to tell the Court what speed the defendant was driving the automobile in which you and your wife was riding.
A. 35--40 miles an hour.
Q. And will you describe the way the car travelled and progressed on the highway?
A. Well yes, the back end was what you call 'fish-tailing' wheels spinning.
Q. What did you say the car was doing?
A. Well, the back end was sliding back and forth. I call it 'fish-tailing', and the wheels was spinning ever so often.
Q. Where was you with reference to Pekin or Salem when you first noticed the car slipping and 'fish-tailing', as you heretofore described?
A. I'd say 4 miles northwest of Pekin.
Q. Now from that point on, tell the Court whether or not the defendant continued to drive at the speed that you testified to?
A. After it quit snowing, before we came into Salem, he picked up speed.
Q. What speed would you say that he was driving immediately before he reached the southern limits of Salem?
A. 55--60 miles an hour.
Q. Yes. Now as you went north from Salem, describe the condition of the weather at that time.
A. It still wasn't snowing when we was in Salem. We had just left the city limits when it started snowing again, and it continued to get heavier and heavier.
Q. And then describe the speed at which the defendant drove as he went north of Salem.
A. Well, he continued to drive between 50 and 55. I'd say until the snow got heavier and heavier and he slowed down to 35 to 40.
Q. And where did he slow down to that speed, if you know?
A. Two miles, something like that, I'd say.
Q. Two miles out of Salem?
A. Two miles and a half.
Q. Will you describe the motion of the automobile at that time as to how it was acting?
A. Well, as the snow got heavier the car kept sliding back and forth--the back end.
Q. And after you had passed the car that pulled off to the side of the road, what did the defendant do with reference to the speed of the vehicle in which he was driving?
A. Well, he picked up speed again.
Q. And what speed did he gain or maintain after he passed this vehicle?
A. Somewhere between 35 and 40.
Q. And what was the condition or the way that the automobile traveling--describe it.
A. It was slipping and sliding.
Q. And then after that, did you finally reach a point about six miles north of Salem? I say did you finally arrive at a point about six miles north of Salem?
A. Yes, approximately that.
Q. And tell the Court what happened at that point, if you will.
A. We got to six miles north of Salem and the back end seemed to start sliding worse and worse and I was looking out trying to find where the road was. I couldn't see the side of the road. I couldn't see the middle of the road and all of a sudden Reverend Brueckner made the remark that, 'Here we go', and the car just slid sideways.
Q. Well, when it slid down the road, what position was the car it?
A. It was broadside going down.
Q. And then what occurred?
A. Well, I started looking around to see where my wife was, and when I did I see car lights coming meeting us, and just right then this other car hit us.
Q. You came together with the car?
A. Yes.
Q. And this car that your car, or the car in which you were riding struck, what was its position on the roadway? I mean which was was it going?
A. The car we hit was going south.
Carl Jones, husband of appellee, upon cross examination being questioned by Mr. Dollens:
Q. Now tell me, Mr. Jones, did the car fish-tail immediately prior to the collision?
A. Yes, it did.
Q. In what direction?
A. We were going north and the back end of the car fish-tailed around.
Q. The fish-tail, however, was a part of the entire collision, was it not?
A. Well, the back end slid around to the right.
Q. The windshield wipers were on?
A. Yes.
Carl Jones, husband of appellee, being recalled upon direct examination, being questioned by Mr. Gossman:
Q. Are you the same Carl Jones that heretofore testified in this cause concerning a collision between the automobile in which you were riding and an automobile driven by John Lee LaMar, which occurred on December 8, 1963, approximately 6 miles north of the town of Salem, in Washington County, Indiana?
A. Yes, I am.
Q. And am I correct in recalling that your testimony at this prior time was the vehicle being driven by the defendant on that day on Indiana 135, north of Salem, was traveling at a speed of approximately 35--40 miles per hour?
A. Yes.
Q. I ask you now to tell the Court how you arrived at this statement as to speed of the vehicle in which you were riding?
A. I had the occasion to glance at the speedometer once in a while to see approximately how fast we were going on that slick road.
Q. And immediately before this collision, did you have occasion to look at the speedometer?
A. I did.
Q. Will you tell the Court what the speedometer was registering at the time you last looked at it?
Q. Tell the Court what the speedometer was indicating at that time?
A. It was between 35 and 40.
Hilda Jones, Appellee, testified:
'Q. And can you tell the Court about when the snow started to fall?
A. It was close to Pekin, I don't know how close. And it snowed heavy for a short time, and we slid then a couple of times. An then it quit snowing.
Q. Would you be able to say the approximate speed the defendant drove the car as he traveled from Pekin to Salem on thst snowy road?
A. It was around 55 or 60, something like that.
Q. What did the car do, if anything?
A. When we went into that first snow-storm at Pekin, we slipped, but we didn't meet any other cars.
Q. Did the car slide more than once?
A. Yes.
Q. Just describe what the car was doing?
A. Just going like that. I'd say about four or five times.
Q. They want you to describe the motion of your hands. What part of the car was sliding?
A. The back, I guess.
Q. What were the conditions of the weather as you reached the north edge of Salem?
A. It wasn't snowing then, it was dark.
Q. What would you say about the snow as to whether it was a light snow, a heavy snow or a medium snow?
A. It was heavy.
Q. Heavy snow. Was it covering the surface of the roadway?
A. Yes.
Q. Can you tell the Court what speed Brueckner drove after he left Salem going north, approximately?
A. Well, I'd say 35, anyway.
Q. And will you describe to the Court how the car was moving at that time?
A. We were sliding back and forth.
Q. Well, could you give us some idea--about how fast probably you was traveling?
A. I'd still say between 35 and maybe more.
Q. 35 miles an hour and maybe more?
A. Yes.
Q. Was the car still sliding back and forth on the road?
A. Yes.
Q. Just saw the lights of it. Will you describe what occurred just before the cars struck that you remember.
A. We were sliding and the last thing I remember is seeing the car lights, and I don't remember hitting or anything.
Hilda Jones, the appellee, upon resumption of her direct examination, being questioned by Mr. Gossman:
Q. Now will you describe for the Court the course that the vehicle that you was riding in took in the--in traveling into the collision that you've heretofore testified about.
A. There was a heavy snow and the road was slick and we started sliding.'
The Appellant was concerned about reaching his home within 20 minutes from Salem.
The basic contention of the Appellant is that all of the facts and inferences fail to constitute wilful or wanton misconduct within the meaning of the Guest Sta...
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