Davis v. Dondanville
| Decision Date | 17 April 1940 |
| Docket Number | 16204. |
| Citation | 26 N.E.2d 568,107 Ind.App. 665 |
| Parties | DAVIS v. DONDANVILLE. |
| Court | Indiana Appellate Court |
L C. Holland, of Gary, for appellant.
Geo W. Douglas and Loring & Loring, all of Valparaiso, for appellee.
This case grew out of an automobile accident in which the appellee, Eugene Dondanville, sustained personal injuries for which he recovered a judgment in the sum of $1,150. His complaint alleged that on August 17, 1936, he was riding as a guest in the rear seat of an automobile, which automobile was travelling southward on Buchanan Street in the city of Gary Indiana. The complaint further alleged that after the automobile in which the appellee was riding had entered the intersection of Buchanan Street and Fourth Avenue, the appellant "without keeping any proper lookout ahead" drove and propelled his automobile into and against the left side of the automobile in which the appellee was riding, with great force and violence. As a result of this collision the appellee was injured. To this complaint the appellant filed an answer in general denial. The cause was submitted to a jury for trial and a verdict was returned in favor of the appellee for the amount of $1,150, for which judgment was entered. A motion for new trial challenging the sufficiency of the evidence and the correctness of certain instructions was filed and overruled and this ruling constitutes the only error relied upon for reversal in this appeal.
The appellant first contends that the evidence is insufficient to support the theory of the appellee's complaint. The facts most favorable to the appellee disclose that on the occasion in question the automobile in which the appellee was riding was traveling southward on Buchanan Street and approaching the intersection of Fourth Avenue which runs east and west in the city of Gary. Fourth Avenue at the place of intersection was approximately forty feet wide from curb to curb and is a four-lane thoroughfare. Buchanan Street at the point in question was about thirty feet in width and extended in a north and south direction. At the point of intersection automatic traffic lights were operating and a traffic policeman was also stationed there. The accident occurred about 3:50 P. M., at a time when traffic was quite heavy on Fourth Avenue. The driver of the car in which the appellee was riding, one McLaren, testified that on the occasion in question he approached Fourth Avenue at a speed of approximately twenty-five miles per hour. That when he was within fifteen feet of the intersection, he saw the appellant's car standing on Fourth Avenue and at that point the traffic lights changed. The witness further stated that in that situation it was too late for him to stop and he had to go on through although the traffic lights were against him. He further stated that the appellant's car struck his car on the left side when he was near the center of Fourth Avenue and on the west side of Buchanan Street.
The appellant testified that he did not see the car in which the appellee was riding until he was within ten feet of it. That "it was right on top of me before I seen it." The appellant further testified that at that time he was going at the rate of five or six miles per hour and could have stopped his car in five or six feet if he had applied the brakes. There is testimony in the record to the effect that many automobiles were stopped on Fourth Avenue awaiting the change of the traffic lights at the time of the collision and that the appellant's car was the only car on Fourth Avenue which had moved into the intersection at the time of the collision. If these facts were established, then the jury might properly infer that if the appellant under such circumstances drove his car into the side of the car in which the appellee was riding, such conduct was the result of his failure to keep a proper lookout ahead. In the light of such testimony even though these facts are very much controverted by other testimony, we cannot say as a matter of law that there was no evidence tending to support the theory of the appellee's complaint.
Even though it is made to appear that the car in which the appellee was riding entered the intersection as the traffic lights were changing, or after they had actually changed against the south-bound traffic, this fact alone does not relieve the appellant from the duty to exercise reasonable care in driving his automobile into the intersection. As has been frequently said by our courts: "The mere fact that one vehicle has the right of way over another vehicle at a street or road intersection, does not relieve the driver of the vehicle thus favored from the duty to exercise reasonable care to avoid collision at such intersection." Standard Oil Co. of Indiana v. Thomas, 1938, 105 Ind.App. 610, 619, 13 N.E.2d 336, 340; Johnson v. Wilson, Adm'rx, 1937, 211 Ind. 51, 5 N.E.2d 533; Blasengym v. General Accident, etc., Corp., 1929, 89 Ind.App. 524, 165 N.E. 262.
Whether or not the appellant was negligent in the operation of his car on the occasion in question by failing to keep a lookout ahead for other traffic within the intersection was a question properly submitted to the jury, under the evidence offered in this case.
The appellant further complains of the refusal to give Instruction No. 6 as tendered by the appellant. This instruction was on the measure of care required of a guest riding with another in an automobile. This instruction as tendered defines such degree of care as that which "a reasonable and prudent person would exercise under same or like circumstances or conditions, taking into consideration plaintiff's knowledge of the highway, the width thereof, the weather condition, the stop and go light that regulates the traffic at the intersection of Fourth Avenue and Buchanan Street * * * and plaintiff's knowledge of the driver's ability as a driver, his experience and the conditions of the car that they were operating. * * *"
The court in its instructions to the jury by instructions Nos. 24, 25, and 26 informed the jury generally as to the duty of a passive guest to exercise care for his own safety. It is our opinion that these instructions sufficiently advised the jury of the duty resting upon the appellee and it was accordingly not error to refuse instruction No. 6 as tendered by the appellant.
Complaint is further made of the refusal to give instruction No. 9 as tendered by the appellant. Instruction No. 9 also dealt with the duty of a guest to exercise care for his safety. Instruction No. 9 so tendered in defining said duty said "He (the guest) is required to observe the highway and to see what is on said highway that could have been seen by an ordinarily prudent person; that if you find from the evidence that the stop and go lights regulating the traffic at Fourth Avenue and Buchanan Street, a public highway in the City of Gary, Indiana, were operating in such a...
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