Buroker v. Brown
| Decision Date | 16 June 1959 |
| Docket Number | No. 1,No. 19061,19061,1 |
| Citation | 159 N.E.2d 140 |
| Parties | Adam E. BUROKER, Appellant, v. Herbert G. BROWN, Appellee. * |
| Court | Indiana Appellate Court |
Dillon & Volstad, Symmes, Fleming & Symmes, Indianapolis, for appellant.
Smith & Yarling, Robert S. Smith and Richard W. Yarling, Indianapolis, James D. Acher, Franklin, for appellee.
Appellee brought this action against appellant for damages allegedly sustained in an automobile accident.
The complaint in two paragraphs, the first seeking damages on the theory appellee was a passenger-for-hire in the automobile operated by appellant and charged negligence. The second, in addition to the allegations in the first paragraph, charges the appellant with wanton and wilful negligence.
Appellant amended plea in abatement after hearing was overruled. Also, a supplementary plea in abatement filed at the conclusion of appellee's evidence was overruled. After his motion to strike certain parts of the complaint and to make others more specific, definite and certain was overruled, the appellant filed appropriate answer under the rules. The cause was submitted to a jury resulting in a verdict in favor of appellant on the first paragraph of complaint, and in favor of appellee on the second paragraph, assessing damages of $25,000.
In view of the conclusion arrived at, we need consider only one of the errors assigned (see Tribune-Star Pub. Co. v. Fortwendle, 1953, (T.D.1954) 124 Ind.App. 618, 115 N.E.2d 215, 116 N.E.2d 548) to-wit: The court erred in overruling appellant's motion for a new trial. In that motion we consider only the appellant's specification that the verdict of the jury is not sustained by sufficient evidence. Where, as here, there was a sharp conflict in the evidence, we may consider only the facts established by evidence most favorable to appellee, unless the evidence is of such a character that to believe it would involve an absurd or unreasonable conclusion. See authorities cited in § 2786, Flanagan, Wiltrout and Hamilton's, Indiana Trial and Appellate Practice, p. 367.
With that rule as our guide, we proceed to a consideration of such facts.
The parties hereto, and a third party, Bogart, were serving in the Armed Forces of the United States at Fort Knox. Sometime prior to January 15, 1955, appellee and Bogart made arrangements with appellant to drive them to their home in Ohio. Appellant picked them up at the bus station in Louisville, Kentucky. All three rode in the front seat. Appellee had been dozing most of the time but woke up when they were going through the town of Deputy, Indiana. He glanced at the speedometer and it showed a speed of around 85 to 90 miles per hour. The weather was clear and appellee did not see any ice or snow on either side of the road. The berms on both sides of the road were wet and muddy. About two miles north of Deputy, the right front wheel went off the road. In attempting to bring the car back on the road, appellant, who was driving, lost control of the car. It skidded for a distance of more than 400 feet, struck and broke a utility pole. Appellee was injured seriously as a result of the accident.
The question we must determine is whether the facts set out above are sufficient to sustain appellee's charge that appellant was guilty of wilful and wanton misconduct.
In the case of Brown v. Saucerman, 1957, 237 Ind. 598, 145 N.E.2d 898, 902, the Supreme Court, by an equally divided court on the issue of wanton or wilful misconduct of the appellant, reversed a judgment in favor of appellee under the 'Guest' Statute. The facts set forth in the above case were much stronger in favor of appellee than they are in this case. There, the evidence most favorable to the appellee was to the effect that it was dark and raining and the pavement was slick; that the appellant drove away from the drive-in with...
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Clouse v. Peden
...wanton or wilful misconduct within the meaning of the guest statute, supra. Appellee cites and relies on the case of Buroker v. Brown (1959), Ind.App., 159 N.E.2d 140, as supporting the proposition that speed alone is not wanton or wilful misconduct. Appellee also cites the cases of Reynold......
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Buroker v. Brown
...factual situations, preceding and at the time of the crash, are adequately discussed in the opinion of the Appellate Court in Buroker v. Brown, 1959, 159 N.E.2d 140, hence need not be amplified A review of the facts and the evidence reveals that the only paragraph of complaint upon which th......