Cochran v. Wimmer
| Decision Date | 29 October 1948 |
| Docket Number | 17736. |
| Citation | 81 N.E.2d 790,118 Ind.App. 684 |
| Parties | COCHRAN v. WIMMER. |
| Court | Indiana Appellate Court |
Appeal from Superior Court, Grant County; Oren W. Dickey Judge.
Action by William Wimmer, by his next friend, Fred Wimmer, against Wilbur Cochran, to recover for injuries allegedly sustained in collision between school buses, one of which was driven by defendant. From an adverse judgment, the defendant appeals.
Judgment affirmed.
Van Atta Batton & Harker, of Marion, and Bingham, Cook & Bingham, of Indianapolis, for appellant.
Campbell Gemmill, Brown & Ewer and Jerry W. Torrance, all of Marion, for appellee.
Action by appellee, a minor, by his father as next friend, for damages resulting from the alleged negligent operation of a motor vehicle by the defendant Cochran. The complaint alleges the appellee received injuries resulting in Jacksonian epilepsy. From an adverse verdict Cochran appeals.
The evidence most favorable to the appellee discloses that on December 22, 1944, William Wimmer, 9 years of age, was riding in a northerly direction on King Road, in Grant County, in a school bus operated by one Zimmerman. A private driveway entered said road from the west and just after Zimmerman's bus entered the intersection going north another school bus operated by appellant Cochran ran eastwardly from said driveway into the intersection at about 15 miles per hour without stopping, and struck the bus operated by Zimmerman and occupied by appellee.
The day was cold, the windows frosted, and the roads covered with packed snow, The bumper of Cochran's bus struck Zimmerman's bus just over the left rear dual wheels, immediately above which William was sitting inside the bus. The impact of the collision damaged the front bumper and broke a headlight on Cochran's bus. It punctured a dual tire, tore the rear left fender loose, broke a skid chain and damaged the body of Zimmerman's bus, the rear end of which was jolted or pushed over a foot or more in the road. The impact jarred or jolted all the children in the Zimmerman bus and slid some of them on their seats. Some had to brace themselves to avoid falling. Somebody said something at the time about Billy Wimmer being hurt. It is not claimed that any of the other passengers in either bus were injured. Both busses proceeded to their destinations.
When William boarded the bus he was well and healthy; had never had any spells, and was a bright, intelligent 'A' student. When he arrived at the school he complained of pain in his back; he couldn't kneel down; he was white; he limped and held his back; he cried, complained of headache and held his head front and back. He was taken to the school nurse who examined him but found no external evidence of physical injury.
Later the same day he fell from his chair at home. On December 26 he had an epileptic seizure. He attended school regularly during the spring term although evidencing symptoms of epilepsy. The seizures thereafter continued with increasing frequency and intensity. There is no doubt that William is now afflicted with epilepsy. At the time of trial he was a dull, inattentive, indifferent, mentally retarded 11 year old boy, unable to answer simple questions, unable to do his school work and subject to frequent epileptic convulsions. The condition is permanent.
Whether the collision was attributable to negligence on the part of Zimmerman or of Cochran was disputed, but the evidence most favorable to the appellee places the fault in Cochran. We have stated the essential facts surrounding the accident so that questions concerning instructions may be intelligently considered.
The appellant first asserts the evidence fails to show that William sustained any physical injury as a result of the accident. But in addition to the evidence above recited there is expert testimony to the effect that he could have suffered damage to his brain without external evidence of injury, and same could be caused by a jolt or sudden blow. We think there was ample evidence to support an inference that he was physically injured in the accident.
Appellant next insists the evidence is insufficient to justify the jury in finding that the disease of epilepsy was caused by the accident, and in that regard says the expert testimony establishes only the possibility that appellant's condition resulted from it.
We have carefully examined the evidence in that regard. In answer to a hypothetical question which gave a detailed description of the accident and the boy's physical and mental condition theretofore and thereafter, all as shown by the evidence, one doctor testified he thought there would be a connection between the accident and the appellee's present condition. Another testified that in his opinion the accident did have a causal connection with the boy's present physical condition. Another was asked whether in his opinion, based upon reasonable medical certainty, there would be any connection between the accident in which the appellee was injured and his condition which developed subsequent thereto. He answered, 'There could be a great deal, yes, sir.' He also testified that in his opinion the appellee's condition resulted from an injury--probably a ruptured blood vessel which caused a hemorrage with resultant scar tissue which cut off the blood supply to a portion of the brain.
Whether the appellee was suffering from traumatic or idiopathic epilepsy was sharply contested, and there was much evidence to the effect that the appellee's condition was not and could not be the result of trauma. We are of the opinion, however, that under the evidence the question was clearly one of fact for the jury to determine.
The court gave appellee's tendered instruction No. 3 which quoted the statutory duty of one entering a highway from a private road or driveway to yield the right of way to vehicles approaching on said highway, and gave the statutory definition of 'right of way'. It then informed the jury, in effect, that a failure to comply with the statute constituted actionable negligence in itself, and if such actionable negligence proximately caused a collision, as a proximate result of which the plaintiff sustained the injuries alleged, and plaintiff himself committed no act or omission of negligence contributing thereto, their verdict must be for the plaintiff. Of the objections made to this instruction at the trial it is here urged that said instruction is mandatory in form, and charges the jury that under the statute quoted the appellant must yield the right of way to the other vehicle without in any manner qualifying the duty and obligation of the other driver to exercise reasonable care.
It is of course true that the driver of a vehicle is under the duty to use reasonable care to avoid a collision even though he has the right of way at a street or intersection. Standard Oil Co. of Indiana v. Thomas, 1938, 105 Ind.App. 610, 13 N.E.2d 336; Lindley v Skidmore, 1...
To continue reading
Request your trial