Conner v. Jones
| Decision Date | 01 March 1945 |
| Docket Number | 17271. |
| Citation | 59 N.E.2d 577,115 Ind.App. 660 |
| Parties | CONNER v. JONES. |
| Court | Indiana Appellate Court |
Rehearing Denied April 12, 1945.
See 60 N.E.2d 534.
Appeal from Superior Court, No. 4, Marion County; Walter Pritchard Judge.
Action by Edgar L. Jones against Ernest L. Conner, for personal injuries resulting from the alleged negligence of defendant in the operation of an automobile. From a judgment for plaintiff for $5,000, defendant appeals.
Affirmed.
Albert Stump and Leo X. Smith, both of Indianapolis, for appellant.
Armstrong & Gause, of Indianapolis, for appellee.
The appellee recovered judgment in the Marion Superior Court against the appellant in the sum of $5,000 as compensation for personal injuries resulting from the alleged negligence of said appellant in the operation of an automobile. The trial court is charged with error in three particulars: (1) In overruling appellant's motion for a new trial; (2) in failing and refusing to weigh the evidence in passing upon said motion for a new trial; and (3) in refusing to sign appellant's bill of exceptions No. 3 and to order it filed and made a part of the record.
Shortly before this appeal was lodged with us the appellant filed a petition for a writ of mandamus directed to the trial judge and ordering him to sign bill of exceptions No. 3 and make the same a part of the record in this case. We refused to issue such writ and in a written decision fully discussed the propriety of the relief sought. State ex rel. Conner v. Pritchard, Ind.App.1944, 54 N.E.2d 283. Thus having heretofore decided that the matters set out in said bill of exceptions No. 3 could not properly be made a part of the record, we must of necessity hold that the trial court committed no error in refusing to sign the same.
The appellant relies wholly upon said bill of exceptions No. 3 to support his second assignment of error and, without such bill in the record, there is nothing to indicate that the trial court, in ruling on the motion for a new trial, failed to weigh the evidence and determine for itself where the preponderance thereof rested.
In the absence of a showing to the contrary, it must be presumed that the trial court faithfully discharged its duty in that respect, Dulin v. Long, Ind.App.1944, 54 N.E.2d 652, and the overruling of the motion for a new trial was, in effect, a determination by the trial court that the weight of the evidence justified the verdict. State ex rel. Winslow v. Fisher, Clerk, 1941, 109 Ind.App. 644, 37 N.E.2d 280.
There remains for consideration the questions presented by the motion for a new trial which charges: (1) The verdict is not sustained by sufficient evidence; (2) the verdict is contrary to law; (3) the damages assessed by the jury are excessive; and (4) the court erred in giving certain instructions tendered by the appellee and in refusing to give certain others tendered by the appellant. The question of excessive damages has been specifically waived and therefore will not be discussed.
An intelligent disposition of the proposition that the verdict of the jury is not sustained by sufficient evidence requires a brief review thereof, or at least of that portion of the evidence which is most favorable to the appellee. East Michigan Street is a public thoroughfare in the City of Indianapolis running due east and west and, along its length and in about its center, Indianapolis Railways, Incorporated, maintains a double line of car tracks over which it operates streetcars in opposite directions, those bound east using the south track and those going west using the north track. Beville Avenue runs into Michigan Street at right angles from the south and then jogs approximately 118 feet to the east where it leaves Michigan Street and continues due north. Indianapolis Railways, Incorporated, stops its Michigan Street cars, to take on and discharge passengers, at a point approximately in the middle of said jog, where it maintains a 'Car Stop' sign suspended on a wire over its tracks.
On December 4, 1941, at about 6:30 P. M. the appellee was standing on the southwest corner of Michigan Street where Beville Avenue joins it from the south. It was a dark night and there was a slight mist or rain in the air. The appellee was not familiar with the neighborhood and had not noticed the sign indicating the place where cars stop, although he had gotten off a streetcar at that point earlier in the day. He had chosen this corner to wait for an east-bound car because it seemed the logical place for the purpose but he was not sure that a car would stop for him there. The intersection of Michigan Street and Beville Avenue is in a closely built up business and residential section of Indianapolis and traffic along Michigan Street at 6:30 in the evening is generally heavy. While so standing on the corner above described, the appellee saw a street car approaching from the west about one-half block away and he thereupon walked into Michigan Street along approximately the middle line of the cross-walk as indicated by the lines of the sidewalk on Beville Avenue extended north. He walked to a point within 2 to 4 feet of the tracks and waived his hand for the purpose of stopping the car which was then about 20 feet away and slowing down. At this moment the appellant, who had been driving his automobile astride the south rail of the tracks, approached said streetcar from the rear and swung out and by it to the south and directly toward the appellee at a speed of 40 to 45 miles per hour. The appellee attempted to jump back and out of the path of said automobile but its right-hand headlight struck him and, as the result thereof, he was severely injured. When he was hit the front door of the streetcar, which had slowed down almost to a stop, was just about even with or opposite his position in the crosswalk. The evidence also establishes the fact that at the time of the accident there were two ordinances of the city of Indianapolis in full force and effect, one of which provides that the operators of motor vehicles shall yield the right of way to pedestrians crossing roadways within the lines of a crosswalk, and the other provides that the operator of a vehicle overtaking any streetcar, stopped or about to stop for the purpose of receiving or discharging any passenger, shall stop such vehicle at a distance not less than 6 feet from the rear thereof and shall keep such vehicle stationary until such passenger has boarded such car or reached a place of safety.
The appellant assails these facts as being insufficient to support the verdict against him for several reasons: First, he says the appellee's version of how the accident happened is incompatible with the physical facts involved and therefore must be disregarded. It is well settled in this jurisdiction and elsewhere that the testimony of a witness which is opposed to the laws of nature, or which is clearly in conflict with principles established by the laws of science, is of no probative value and a jury is not permitted to rest its verdict thereon. Lake Erie & Western Railroad Co. v. Stick, 1896, 143 Ind. 449, 41 N.E. 365; Emrich Furniture Co. v. Byrnes, 1909, 44 Ind.App. 341, 87 N.E. 1042; Wabash R. Co. v. McDoniels, 1915, 183 Ind. 104, 107 N.E. 291; 20 Am.Jur., Evidence, §§ 1183 and 1184. This rule is frequently applied to the testimony of one who says he looked but did not see an object, which, if he had looked, in the very nature of things, he must have seen. However, where a court cannot say as a matter of law that the testimony of a witness is contrary to scientific principles, the law of nature or the physical facts, the question of whether such testimony does so conflict is one of fact for the jury to determine. Fleming v. Northern Tissue Paper Mill, 1908, 135 Wis. 157, 114 N.W. 841, 15 L.R.A.,N.S., 701. See Annotations, 21 A.L.R. 145, 7 L.R.A.,N.S., 357, 15 L.R.A.,N.S., 701, 28 L.R.A.,N.S., 648, L.R.A.1916D, 301.
The appellant has made certain mathematical calculations based on distances and speeds as appear in the testimony of the appellee and seeks to demonstrate thereby that the appellee would have reached the curb in safety before the appellant's automobile reached any point in the street where the appellee possibly could have been hit. Therefore, says the appellant, the appellee's testimony concerning the manner in which the accident happened must be disregarded because it contravenes the law of mathematics and being so disregarded there remains no evidence to support the verdict. This argument presupposes that the appellee's estimates of the distance he was from the curb when he first saw appellant's automobile, the distance it was then from him and the speed at which it was moving, are accurate to a mathematical certainty. This, of course, we cannot assume. His testimony in reference to distances and speeds was merely the expression of his best judgment in regard thereto and may have been subject to some error. The speed at which the appellant's automobile approached the place of the accident, as measured in miles per hour, is of little consequence if, in view of all the circumstances, it was then being driven faster than was ordinarily careful and prudent. We are of the opinion, therefore, that the question of whether the appellee's version of the manner in which he was run down and hit is contrary to scientific principles and incompatible with the physical facts is not one of law and we are not at liberty to disturb the jury's finding in reference thereto.
Among other things, the appellant is charged with having driven his automobile, at the time and place of the accident, at a high and dangerous rate of speed. We have the testimony of two witnesses that such speed...
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