Burks v. Walters, 18777

• Decision Date: 29 April 1957
• Docket Number: No. 18777,18777
• Citation: 127 Ind.App. 358,141 N.E.2d 872
• Parties: Ione BURKS, Appellant, v. Norma Jean WALTERS, Appellee.
• Court: Indiana Appellate Court

Page 872

141 N.E.2d 872

127 Ind.App. 358

Ione BURKS, Appellant, v. Norma Jean WALTERS, Appellee.

No. 18777.

Appellate Court of Indiana, In Banc.

April 29, 1957.

Jones, Obenchain & Butler, Roland Obenchain, Jr., Roland Obenchain, Sr., South Bend, for appellant.

Kizer & Neu, Plymouth, Mehl & Mehl, Goshen, for appellee.

COOPER, Judge.

This is an appeal from a judgment in an action for damages alleged to have been sustained upon a complaint brought by the appellee, Norma Jean Walters, against the appellant, Ione Burks, wherein the appellee recovered a judgment for alleged personal injuries sustained in an automobile collision which occurred at the intersection of State Road #19 and Heaton Lake Road in Elkhart County, Indiana.

Issues were joined upon the appellant's answer in three paragraphs, the first put the appellee on proof as to all allegations of negligence and damages contained in the amended complaint; the second alleged that the appellee's negligence proximately caused or contributed to the alleged collision and her alleged injury; the third, alleged that the appellee's husband's conduct was the sole proximate cause of such collision and the injury. To each of the last two paragraphs of answer the appellee filed a reply in denial. The appellant also filed a counterclaim in two paragraphs. The second paragraph of said counterclaim was dismissed. The appellee filed an answer in two paragraphs to the first paragraph of the appellant's counterclaim.

The cause was tried by jury, and the jury resolved all of the controversial issues in favor of the appellee and assessed her damages in the amount of $5,000, and judgment was rendered against the appellant on her counterclaim.

Thereafter, the appellant filed her motion for new trial, which was overruled by the trial court, and this appeal followed.

The only error assigned is that the trial court erred in overruling the appellant's motion for a new trial.

Grounds for the appellant's motion for a new trial, not specifically waived by a failure to present the same in appellant's brief are: (1) The verdict is not sustained by sufficient evidence; (2) The verdict is contrary to law; (3) And error in the court's refusal to give appellant's requested instruction numbers 8, 9, 12 and 20 and in the giving of appellee's instructions 2, 3, 4, 6, 9, 11, 12, 19, 20 and 21 over the appellant's objections; (4) The damages are excessive; (5) The court erred in admitting certain testimony of the appellee.

The appellant, in Specifications 1 and 2 of the motion for new trial charges that the verdict of the jury was not sustained by sufficient evidence and was contrary to law. Rhetorical paragraph five of the appellee's complaint charges the appellant defendant with seven separate and several acts of negligence in the operation of the automobile by the appellant, in this:

(a) She failed to reduce the speed of her automobile as she approached the intersection of Cassopolis Road and Heaton Lake Road but on the contrary was accelerating the speed of her automobile as she approached said intersection.

(b) That she was attempting to pass another motor vehicle as she approached said intersection of Cassopolis Road and Heaton Lake Road.

(c) That she failed to keep a proper lookout for other automobiles approaching said intersection and particularly failed to keep a proper lookout for the automobile in which plaintiff was riding and which was approaching said intersection from the east as the defendant was traveling in a northerly direction.

(d) That she failed to have her motor vehicle under control as she approached said intersection.

(e) That she drove her said automobile at a greater speed than was reasonable and prudent in regard to the density of the traffic, the condition of the roadway, and the approaching of an intersection, to-wit: Forty-five miles an hour.

(f) That she failed to use reasonable care to avoid a collision with the automobile in which plaintiff was riding by either sounding her horn, applying her brakes, or turning her car in an effort to avoid a collision.

(g) That she failed to yield the right-of-way to the automobile in which plaintiff was then and there a passenger as the two vehicles approached said intersection.

The argument advanced by the appellant is that there was no evidence whatsoever that the appellant drove her automobile into the automobile in which the appellee was riding. This proposition as advanced by the appellant cannot prevail, as it is a well-established rule of law that it is not necessary for the plaintiff to prove each and every charge of negligence alleged. It is the law that if the plaintiff has proven any one of the acts of negligence alleged in the complaint by a fair preponderance of the evidence and that such act of negligence so proven was the immediate and proximate cause of the collision resulting in the plaintiff's injuries, and, if the plaintiff was free from any contributory negligence, then the plaintiff would be entitled to recover. Kempf v. Himsel, 1951, 121 Ind.App. 488, 508, 98 N.E.2d 200.

The appellant contends that the verdict of the jury was not sustained by sufficient evidence and was contrary to law. The evidence concerning the occurrence of the accident is conflicting, and, therefore, the question of negligence and proximate cause were for the jury. The evidence most favorable to the appellee was sufficient to present to the jury the question whether appellant was guilty of actionable negligence as herein shown by the concise statement of the evidence. The jury so-found, and the question must be regarded as settled. Gamble v. Lewis, 1949, 227 Ind. 455, 85 N.E.2d 629; Tabor v. Continental Baking Co., 1941, 110 Ind.App. 633, 641, 38 N.E.2d 257.

This court will not weigh the evidence. We may look only to that evidence and the reasonable inferences therefrom most favorable to the appellee. Sims Motor Transport Lines v. Davis, Ind.App.1955, 130 N.E.2d 82; Thompson v. Dyar, Ind.App.1955, 130 N.E.2d 52; Armstrong Cork Co. v. Maar, 1953, 124 Ind.App. 105, 119, 111 N.E.2d 82, 112 N.E.2d 240; Kempf v. Himsel, supra.

A concise recital of the evidence most favorable to the appellee is as follows:

A collision occurred at the intersection of Cassopolis Road, also referred to as State Road #19, and Heaton Lake Road, which intersection was north of the city limits of Elkhart, Indiana; that State Road #19 runs in a northerly and southerly direction and Heaton Lake Road runs in an easterly and westerly direction; that immediately before the collision, the appellant, Ione Burks, was driving an Oldsmobile 98 in a northerly direction on State Road #19, and William Walters, the husband of the appellee, was driving a Pontiac automobile in a westerly direction on Heaton Lake Road; that State Road #19 from the city limits of Elkhart to the intersection in question was posted with speed limits of forty (40) miles per hour; that there was a stop sign on the Heaton Lake Road approach to said intersection, which was located thirty (30) feet east of State Road #19; that William Walters stopped the Pontiac automobile before entering on State Road #19; that a collision occurred with appellant's Oldsmobile in the middle of the intersection; that appellant was driving in excess of the posted speed while passing a pick-up truck and a tractor trailer loaded with an excavating crane as she approached the intersection; that she drove her car on the left side of the road within a distance of one hundred feet (100') of said intersection; that she did not look for automobiles approaching from the east until she was within eight or ten feet from the intersection; that she did not sound her horn, apply her brakes, or turn her car, either to the left or to the right, in an effort to avoid the collision; that appellant, appellee and appellee's husband were all thrown out of the automobiles onto the ground and only appellee's child, Barbara Walters, still remained in the Pontiac automobile after the cars came to a rest; that the right front of the Oldsmobile collided with the left front of the Pontiac; that appellee's husband, William Walters, was killed as a result of the collision; that appellee was rendered unconscious and remembered nothing of the collision or of what happened immediately before the collision; that the Pontiac automobile was titled in the name of the appellee; that a previous automobile had been purchased by the appellee while her husband was in the service, and, upon his return, when a new car was purchased, it was taken in the name of the appellee and the plates transferred; that payments on the Pontiac involved in the collision were made from joint funds of appellee and her husband while they both worked and by her husband alone from April to September after appellee quit working in April; that her husband drove the automobile from Bremen, where they lived, to Kingsbury Ordinance Plant, where he worked, each day and at the time of the collision, appellee's husband was driving the car on Labor Day looking for a place to fish in the lakes around Elkhart and appellee and her daughter Barbara went along for the ride.

Appellant predicates error in the giving of appellee's instruction numbers 2, 3, 4, 6, 9, 11, 12, 19, 20 and 21 and in refusing to give appellant's instruction numbers 8, 9, 12 and 20. The question presented by such specification of error arrives out of the...