Dailey v. Ehser
| Decision Date | 27 April 1961 |
| Docket Number | No. 2,No. 19057,19057,2 |
| Parties | Nellie H. DAILEY, Appellant, v. Cornelius EHSER, Appellee |
| Court | Indiana Appellate Court |
Murray, Mannon, Fairchild & Stewart, James J. Stewart, Basil L. Wimmer, Indianapolis, for appellant.
Smith & Jones, Richard Smith, Harold W. Jones, John T. Hume, III, Indianapolis, for appellee.
Appellant brought this action for damages for personal injuries sustained when she was struck by a motor vehicle operated by appellee. Trial by jury resulted in a verdict for appellee and the jury also returned answers to interrogatories submitted by appellee.
Appellant assigns as error, the overruling of her motion for a new trial and urges as causes thereof, that the verdict is contrary to law; the refusal to give her tendered Instruction No. 8; and the submission of certain of the interrogatories.
Appellant argues that the verdict of the jury is contrary to law because it denied her the relief to which she was entitled under the evidence.
Where the jury returns a verdict against a party who has the burden of proof,
'* * * this court may only examine the evidence to determine whether it conclusively leads to but the single conclusion that the evidence entitles him to relief which was denied by the verdict. * * *' Heeter v. Fleming, 1946, 116 Ind.App. 644, 67 N.E.2d 317, 318.
The testimony in the record before us is in severe conflict, and we are of the opinion that such testimony would not lead the minds of reasonable men to the single conclusion that this appellant was entitled to relief. Confusing and conflicting testimony warrants the wisdom of the rule of appellate practice that facts as found by the triers of fact will not be disturbed when the evidence is in conflict.
The record further reveals that at approximately 4:30 P.M., on November 24, 1954, appellant was walking across Central Avenue (near the Central Avenue, 12th Street intersection, in Indianapolis, Marion County, Indiana) from west to east. Central Avenue runs north and south and is intersected at approximately right angles, by East 12th Street, which runs east and west. Appellant testified that she was crossing the street within a crosswalk on the south side of the Central Avenue, 12th Street intersection when she was struck by the automobile. Appellee, who was operating his motor vehicle on Central Avenue from south to north, testified that he had passed the Central Avenue, 12th Street intersection before he first saw appellant. There is evidence that it was about dusk and raining lightly or misting. The record shows testimony from which the jury could have found that appellee's car was equipped with adequate brakes, that his windshield wipers were working and that his lights were on. It further appears that appellee was operating his car at a speed of fifteen to twenty (15 to 20) miles per hour, and that when appellee first saw appellant she was looking straight ahead and walking rapidly into the path of appellee's car. There is testimony that appellee applied his brakes and attempted to swerve his car when he saw appellant walking into the path of the car, in spite of this the car struck appellant. Appellee, so the record shows, then carried appellant to the sidewalk where she (appellant) told appellee that it was her fault and requested him not to call the police but to take her home.
Abstract statements of law, even though supported by authority, present no question when it is not shown how they are applicable to the assigned errors. Flanagan, Wiltrout, & Hamilton, Indiana Trial and Appellate Practice § 2677, Comment 11 (Pocket Part), see cases cited.
Appellant does not argue that the evidence leads to a single conclusion that appellee was guilty of negligence which proximately caused appellant's injuries. Appellant argues that an exception exists to the rule that this court will not weigh the evidence, in that, 'Where the evidence wholly fails to support an issue material to the verdict and substantial justice has not been done, a new trial should be ordered even though this may require the Appellate Court to weigh the evidence,' and cites, McCoy v. Farm Bureau Mutual Insurance Co., 1953, 123 Ind.App. 424, 111 N.E.2d 728; Quail v. Banta, 1943, 113 Ind.App. 664, 48 N.E.2d 841; and Emerson-Brantingham Implement Co. et al. v. Tooley, 1923, 81 Ind.App. 460, 141 N.E. 890, in support of this argument. We are not in accord with this argument. None of these cases recognize such an exception to the rule that this court will not weigh the evidence, instead they support the proposition that where a negative verdict is challenged as being contrary to law we examine the evidence to determine whether it leads to a single conclusion that appellant was denied the relief to which appellant was entitled. Further, no application is made of this part of appellant's argument to the facts in appellant's original brief as required by Rule 2-17.
Appellant further argues that the answers to the interrogatories demonstrate that the jury (1) completely disregarded uncontradicted evidence on certain material issues; (2) found that there was no evidence on other material issues concerning which there was an abundance of evidence; and (3) made findings in irreconcilable conflict with one another. Without citing authority directly to that effect, appellant takes the position that this makes the verdict contrary to law. There was no motion to require the jury to answer the interrogatories further, and no motion for judgment on the interrogatories notwithstanding the verdict. As appellant admits, the answers to the interrogatories support the verdict.
Although there was no motion in this case to require the jury to answer the interrogatories further, it is held that even in the presence of such a motion it is not error to refuse to re-submit to the jury, interrogatories which are answered, 'no evidence.' An answer of 'no evidence' amounts to a finding against the party having the burden of proving the facts inquired about. Vanosdol v. Henderson, 1939, 216 Ind. 240, 22...
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Otterman v. Hollingsworth
...is considered a finding against the party having the burden of proof as to the propositions in such interrogatories. Dailey v. Ehser (1961), 131 Ind.App. 632, 174 N.E.2d 341. The following interrogatories appear controlling and read as [140 INDAPP 287] 'Interrogatory Number 6 'Did John T. H......