Chicago & Calumet Dist. Transit Co. v. Vidinghoff, 18197

• Decision Date: 19 March 1952
• Docket Number: No. 18197,18197
• Citation: 122 Ind.App. 395,104 N.E.2d 405
• Parties: CHICAGO & CALUMET DIST. TRANSIT CO., Inc., v. VIDINGHOFF.
• Court: Indiana Appellate Court

Page 405

104 N.E.2d 405

122 Ind.App. 395

CHICAGO & CALUMET DIST. TRANSIT CO., Inc., v. VIDINGHOFF.

No. 18197.

Appellate Court of Indiana, in Banc.

March 19, 1952.

Owen W. Crumpacker and Crumpacker & Friedrich, Hammond, for appellant.

Galvin, Galvin & Leeney, Hammond, for appellee.

ROYSE, Judge.

In its petition for rehearing appellant contends we erred in holding the evidence herein was sufficient to sustain the verdict.

In support of this contention appellant correctly states the question of fact as to whether the driver had time to do anything other than he did must rest on the evidence in the record and it then asserts: 'The only evidence as to the time that appellee was in the street after leaving the curb was offered by appellee's witnesses.' It then purports to quote this evidence as follows: 'Q. How long did it take her to leave the curb and travel that distance? A. I should judge about a second.' This is not a true statement of the record and briefs in this case. First, the quoted evidence was not from appellee's witness but from a witness for appellant; second, it was not the only evidence on the subject. The record discloses appellee testified the accident did not happen as she stepped into the street--but that after she started walking in the street toward the bus the accident happened a little while after she stepped from the curb. Another witness for appellee testified appellee walked almost the full width of the bus and in front of the bus that struck her. Finally, as pointed out in the original opinion and as shown by appellant's original brief, the driver of the appellant's bus testified when he saw appellee the second time she was 'about fifteen feet east of the intersection, at which time she was about two or three feet north of the south curb going northeast, she was about three or four feet southeast of the most easterly part of his bus.' He was traveling at a speed of one to two miles per hour with his foot on the brake and could stop in a matter of inches.

In its petition for rehearing appellant acknowledges the rule that this court may only consider the evidence most favorable to appellee--but then proceeds to rely on evidence favorable to it to obtain a rehearing and reversal.

We believe there is ample substantial evidence of probative value set out in our original opinion to sustain the verdict.

Petition for rehearing denied.

CRUMPACKER, J., not participating.

ACHOR, J., dissents.