City of Indianapolis v. Parker

• Decision Date: 28 October 1981
• Docket Number: No. 2-281A70,2-281A70
• Parties: CITY OF INDIANAPOLIS, Appellant (Defendant Below), v. Sherry PARKER, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 456

427 N.E.2d 456

CITY OF INDIANAPOLIS, Appellant (Defendant Below), v. Sherry PARKER, Appellee (Plaintiff Below).

No. 2-281A70.

Court of Appeals of Indiana, Second District.

Oct. 28, 1981.

City-County Legal Division, John P. Ryan, Corp. Counsel by Richard S. Ewing, Chief Trial Deputy, Robert M. Kelso, Certified Legal Intern, Forbes & Pennamped by John G. Forbes, Indianapolis, for appellant.

Maurice R. Petit, John L. Hess, Petit, Jones & Hess, Indianapolis, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Defendant-appellant City of Indianapolis (the City) appeals from a judgment of $15,000 entered in favor of plaintiff-appellee Sherry Parker (Parker) in Parker's action for negligence, claiming that the evidence was insufficient to establish the City's negligent conduct as the cause in fact of Parker's personal injuries, and that the trial court erred in admitting certain testimony.

We affirm.

FACTS

There have been two trials in this case. The first took place in September, 1974, the second in August, 1980. This appeal is from the latter trial.

The evidence most favorable to the judgment discloses that at approximately 7:00 P.M. on December 7, 1969, a two-car collision occurred in Indianapolis at the intersection of Holt Road and Minnesota Street.

Parker and her husband were traveling north on Holt Road, a two-lane highway running north and south; Parker's husband was driving and Parker was in the front passenger's seat. As their car approached the intersection of Holt Road and Minnesota Street, a two-lane highway running east and west, Parker noticed a car traveling east on Minnesota; it also was headed for the intersection of Holt and Minnesota. Parker testified on direct examination regarding what happened immediately after she observed the eastbound car:

And we come was heading north on Holt and I says, he says I saw the car coming. I said, it's not going to stop. He says, we've got a green light. Surely they have a red light, as we you know, entered the intersection.

Q Now, Ms. Parker, directing your attention to directly prior to the collision, did you have an opportunity to look at the light?

A Yes, sir. As we were heading north we had a the light was green as we were approaching the intersection. That's you know, I saw the car wasn't going to stop. That's when I told my husband, I said, stop if you can. You know. And then the impact happened.

Q All right. Now again, would you tell the court what you were doing? You were going north on Holt Road.

A That's correct.

Q Is that right?

A Yes, sir.

Q And you were headed headed in this direction. Your testimony was the light was green?

A Yes, sir.

Q You proceeded through the intersection and you collided with

A Another car.

Record at 281-82.

Parker sustained injuries as a result of the collision.

Marion County Sheriff Jerry L. Hubbs (Hubbs) was sent to the accident scene. He testified as to the condition of the automatic traffic signal at the northwest corner of Holt Road and Minnesota Street at 7:05 P.M., roughly five minutes after the collision:

Q Okay. Was there anything unusual about the about the light on the northwest corner?

A The only thing I can remember when I arrived on the scene I was able to observe a green light for north bound traffic on Holt Road, also I was able to observe a green light for east bound traffic on Minnesota.

Q All right. So the drivers that were driving in those directions would see both see green. Is that right?

A Yes, sir.

Record at 150.

Hubbs also testified that both Mr. Parker and the driver of the eastbound car, identified only as Mr. Jones, were traveling at a lawful rate of speed when the accident occurred.

William R. Sauer (Sauer), a signal repairman for the City at the time of the accident, testified at the first trial. A transcript of Sauer's previous testimony was offered to be read into evidence at the second trial. Jane Barnard (Barnard), Court Reporter for the Marion County Superior Court, Civil Division, Room 3 at the time of the second trial, testified that the record of the first trial had been made by mechanical device (disks), and that she had made an accurate transcript of pertinent portions of that record for purposes of the second trial. Barnard's reporter's certificate verified the substance of her testimony.

Phillip D. Rowe (Rowe), a private investigator employed by Parker, testified as to his efforts to locate Sauer before the second trial. Rowe first consulted the telephone directory, city directory, and other current publications, and was unable to find Sauer's name. Next, Rowe contacted Sauer's former wife, who advised him that she did not know Sauer's whereabouts. Rowe acted upon her suggestion that he contact Sauer's brother. Sauer's brother did not know Sauer's whereabouts, nor did he know of anyone who might be in contact with Sauer. Rowe left his name and phone number as well as the name and number of Parker's attorney with Sauer's brother, requesting that, if possible, he advise Sauer that his attendance at trial was being sought by subpoena. Rowe testified that he had a subpoena commanding Sauer's attendance at trial as a witness at all stages of his search. The subpoena was produced at trial.

Over the City's objections, the transcript of Sauer's former testimony was admitted into evidence as an exhibit. That testimony indicated that traffic at the intersection of Holt Road and Minnesota Street was controlled by two automatic traffic signals. The first, on the southeast corner, functioned properly. However, a fence precluded drivers traveling east on Minnesota from seeing the signal until they were within 75-100 feet of the intersection. Drivers had a clear view of the second signal, located Sauer further testified that he was directed to the intersection of Holt and Minnesota to repair the signal on the northwest corner on the evening of December 7, 1969. When he arrived, at 7:10 P.M., he discovered that the wires were broken and the head was rotated "a quarter turn." Thus, Sauer testified, vehicles traveling northbound on Holt and eastbound on Minnesota were seeing green lights simultaneously.

on the northwest corner of the intersection. But vehicles frequently hit this signal, causing its head to loosen and turn, a problem compounded by the fact that the headbolt of the signal, installed in the 1930s, was rusted. Once loosened, the head could be tightened only temporarily by means of wires. Indeed, Sauer testified that even a strong wind could dislodge the head. Because he had been summoned to repair the signal some ten times during the 30 days preceding the Parker-Jones collision, Sauer had notified his supervisor of the problem and recommended that a permanent solution be devised. His suggestion was not heeded.

The deposition of Dr. John Tondra (Tondra), which had been admitted into evidence at the first trial, was introduced into evidence at the second trial over the City's objection. Tondra, a plastic surgeon, had been deposed as to the nature of Parker's injuries, and had described and estimated the cost of surgical procedures which would reduce Parker's scars. Private investigator Rowe testified as to his efforts to locate Tondra before the second trial. Tondra's home and office numbers appeared in the Indianapolis telephone directory. Upon contacting Tondra's office by phone, Rowe was advised that Tondra had retired, possibly moving to Florida. The address of Tondra's Florida residence was unavailable. Rowe testified that he had a subpoena commanding Tondra's attendance at trial as a witness at all stages of his search. The subpoena was produced at trial.

ISSUES

The City raises five issues: ¹

1. Was there sufficient evidence to establish the City's conduct as the cause in fact of Parker's injuries?

2. Did the trial court err by admitting into evidence, over objection, the transcript of Sauer's former testimony without having it authenticated by the reporter who originally put the testimony on disks?

3. Did the trial court admit into evidence, over objection, the transcript of Sauer's former testimony without the requisite showing that Sauer was unavailable to testify in person, thereby committing reversible error?

4. Did the trial court err by admitting the transcript of Sauer's former testimony into evidence as an exhibit?

5. Did the trial court admit into evidence, over objection, the deposition of Tondra without the requisite showing that Tondra was unavailable to testify in person, thereby committing reversible error?

DECISION

ISSUE ONE-Was there sufficient evidence to establish the City's conduct as the cause in fact of Parker's injuries?

PARTIES' CONTENTIONS-The City does not dispute that on December 7, 1969, the traffic signal at the northwest corner of Minnesota Street and Holt Road was in a defective condition due to the City's negligence. The City maintains, however, that Parker offered insufficient proof that the City's negligence was the cause in fact of her injuries. ² In essence, the City argues that we must infer from the fact that neither driver testified in Parker's behalf that one or both of them entered the intersection not because the light was green, but for some other reason. Parker responds that there was ample evidence of factual causation.

CONCLUSION-The evidence was sufficient to establish the City's conduct as the cause in fact of Parker's injuries.

In reviewing the sufficiency of the evidence in a civil case, the question to be resolved is whether there is substantial evidence of probative value supporting the trial court's judgment. Grad v. Cross (1979) Ind.App., 395 N.E.2d 870. This court will neither weigh the evidence nor judge the credibility of witnesses. Magnavox Fort Wayne Employee Credit Union v. Benson (1975) 165 Ind.App. 155, 331 N.E.2d 46; Cole Real Estate Corp. v. Peoples Bank & Trust Co. (1974) 160 Ind.App. 88, 310 N.E.2d 275. We will consider only the evidence most favorable to the...