Detwiler v. Culver Military Acad.

• Decision Date: 24 October 1929
• Docket Number: No. 13489.,13489.
• Citation: 91 Ind.App. 355,168 N.E. 246
• Parties: DETWILER v. CULVER MILITARY ACADEMY et al.
• Court: Indiana Appellate Court

91 Ind.App. 355

168 N.E. 246

DETWILER

v.CULVER MILITARY ACADEMY et al.

No. 13489.

Appellate Court of Indiana, in Banc.

Oct. 24, 1929.

Appeal from Marshall Circuit Court; Albert B. Chipman, Judge.

Action by Lena Detwiler, administratrix of the estate of Wm. Detwiler, deceased, against Culver Military Academy and another. Judgment for the defendants, and plaintiff appeals. Affirmed.W. A. Slick, of South Bend, and John W. Kitch, of Plymouth, for appellant.

D. O. Osborn and W. S. Carlisle, of South Bend, for appellees.

NICHOLS, J.

On a night in December, 1926, appellant's intestate, William Detwiler, while walking across the paved portion of a public highway at a point about 5 miles south of the city of South Bend, was struck and killed by an automobile driven by appellee Reed. It is alleged in the complaint that appellee Reed was at said time the servant and agent of appellee Culver Military Academy, and was at said time engaged upon a business mission for said academy. Appellant, administratrix, brought this action for damages for the death of said intestate for the benefit of his widow.

Appellant's complaint is in two paragraphs. The first alleges three negligent violations of the motor vehicle statute of this state, as follows, to wit: (1) Driving said automobile at a dangerous and unreasonable rate of speed, to wit, in excess of 35 miles per hour; (2) failure to slow down and give warning of its approach by sounding horn or other signaling device in approaching appellant's intestate; and (3) driving said automobile, in approaching said intestate, with lights out or dimmed so that he was not visible for a distance of 200 feet in front of the same.

The second paragraph is based upon the doctrine of “last clear chance,” and alleges in substance that, after appellees saw or should have seen the intestate in a position of peril directly in the path of the automobile, they failed to use ordinary care to stop or turn to one side, and thus avoid striking him.

Appellees filed their answers in general denial. There was a trial by jury, which resulted in a verdict for appellees on which judgment was rendered, from which, after appellant's motion for a new trial was overruled, this appeal; appellant assigning alleged error of the court in overruling her motion for a new trial under which she presents error in giving certain instructions hereinafter considered.

It appears by the evidence that appellee Reed was a physician at the Culver Military Academy, and on a night in December, 1926, he was driving his own automobile south on a paved highway south of South Bend. He met an automobile, a Ford sedan, in which were the wife and daughter of the deceased, that was having engine trouble, and which was starting forward as Reed's automobile was coming abreast. The lights on Reed's car were dimmed, but were turned on as soon as his car had passed the Detwiler car. The deceased stepped from behind the Detwiler car into the path of the Reed car when the Reed car was 6 to 8 feet distant, and traveling 20 to 25 miles per hour. The left fender and light of the Reed car collided with the deceased, before Reed could stop his car, and death resulted. Reed did not know of the presence of the deceased until he stepped into the light thrown out by Reed's headlights when only 6 to 8 feet from the deceased, the Detwiler car being between them until that time, and Reed did not know that the Detwiler car was not moving.

One of Reed's duties as physician at Culver Military Academy was to take samples of the water being used, and send them to the medical laboratory at South Bend for examination. The samples were usually sent by mail, and sometimes by express, depending upon their size, but not before by automobile.

On the day in question, Reed secured samples of the water to send to the medical clinic. He and his wife desired to do some Christmas shopping at South Bend, and they decided to take the water to the clinic, then do their Christmas shopping, and return home. They drove their automobile to South Bend, took the samples of water to the clinic, then did their shopping, and started home in the evening. The accident in question happened on the return trip. Reed was not directed to take the water to South Bend and no one at Culver Military Academy knew of his mission, which, with reference to the water, ended with its delivery to the clinical laboratory.

Reed is now dead, and a motion to dismiss has been filed as to him. This motion, under the provisions of section 290, Burns' Ann. St. 1926, must be, and hereby is, sustained.

As stated above, the only errors presented by the brief relate to giving certain of appellee's instructions. These in the order in which appellant has presented them:

[1] Appellee's instruction No. 18 given by the court informed the jury that it was not the duty of appellee Reed to sound his horn,...