Devine v. Grace Const. & Supply Co., 30242

• Decision Date: 24 April 1962
• Docket Number: No. 30242,30242
• Citation: 243 Ind. 98,181 N.E.2d 862
• Parties: John P. DEVINE, Appellant, v. The GRACE CONSTRUCTION AND SUPPLY COMPANY, an Indiana Corporation, Appellee.
• Court: Indiana Supreme Court

Page 862

181 N.E.2d 862

243 Ind. 98

John P. DEVINE, Appellant, v. The GRACE CONSTRUCTION AND SUPPLY COMPANY, an Indiana

Corporation, Appellee.

No. 30242.

Supreme Court of Indiana.

April 24, 1962.

Rehearing Denied June 12, 1962.

Charles W. Gannon, Gary, James F. Biddle, Columbia City, for appellant.

Hunt & Suedhoff, Fort Wayne, Gates & Gates, Columbia City, for appellee.

BOBBITT, Judge.

This case comes to us on petition to transfer from the Appellate Court under Acts 1933, ch. 151, § 1, p. 800 being § 4-215, Burns' 1946 Replacement. See: Devine v. Grace Construction and Supply Company (Ind.App. 1961), 177 N.E.2d 476, for opinion of the Appellate Court.

It is an action by appellant to recover damages for personal injuries allegedly suffered by him when he swerved his automobile to avoid an alleged unlighted barricade placed across the south traffic lane of United States Highway No. 24, which was under repair by appellee pursuant to a contract with the Indiana State Highway Commission.

As appellant drove east from Peru, Indiana, at about 1:45 a. m. on July 13, 1950, at a speed of 50-55 miles per hour he 'suddenly came into view' of the barricade and he 'instantly turned to the left to try to avoid' it, and 'upon seeing oncoming lights in the other lane of traffic' he turned farther to the left and to his 'amazement there was the guard rail and the abutment' which he struck throwing him out of the car. There were no other eye witnesses to the accident.

The sole question here presented is the alleged error of the trial court 'in sustaining the motion of defendant, [appellee] at the close of plaintiff's [appellant's] evidence, to direct the jury to return a verdict for the defendant', Grace Construction and Supply Company.

Appellant asserts that there is evidence to support each allegation of his amended complaint; while appellee asserts (1) that there is no evidence to support certain allegations of the complaint, which for reasons that will presently appear we need not further consider; and (2) that appellant was guilty of contributory negligence which barred his recovery regardless of any alleged negligence of appellee.

The judgment of the trial court in this case must be affirmed if it can be sustained on any theory presented by the issues. Pfisterer v. Key (1941), 218 Ind. 521, 531, 33 N.E.2d 330.

We shall first consider the evidence of contributory negligence.

If plaintiff-appellant was guilty of contributory negligence as a matter of law he cannot recover, and it was the duty of the trial court, under such circumstances, to direct a verdict for the defendant-appellee herein. New York Central Railroad Company v. Glad (Ind.1962), 179 N.E.2d 571; Day v. Cleveland, Columbus, Cincinnati and St. Louis Railway Co. (1894), 137 Ind. 206, 210, 36 N.E. 854.

We are mindful of the rule as recently stated in New York Central Railroad Company v. Glad, supra, at page 572 of 179 N.E.2d:

'The question of contributory negligence is one of fact for the jury when the evidence with respect thereto is in dispute or is conflicting, or is such that different minds may reasonably draw different conclusions or inferences therefrom. However, where but one reasonable conclusion or inference can be drawn from the evidence, the question of contributory negligence is one of law for the court.' See also: Lincoln Operating Co. v. Gillis (1953), 232 Ind. 551, 556, 114 N.E.2d 873.

First: Appellee asserts that appellant is guilty of contributory negligence as a matter of law because he was driving his automobile at a speed of 50-55 miles per hour in a zone posted for '15 miles per hour' in violation of that part of Acts 1959, ch. 12, § 1, p. 28, being § 47-2004(b)(3), Burns' 1961 Cum.Supp., which provides, inter alia, as follows:

'No person shall drive a vehicle at a speed greater than the maximum number of miles per hour which shall have been determined and sign posted as a speed limit by the state highway commission.'

While there is evidence that there was a sign posted on the highway with the words and figures '15 miles per hour' printed thereon, there is no evidence, nor were we able to find any from which a reasonable inference could be drawn, that a speed limit of 15 miles per hour was 'determined and sign posted' by or at the direction of the State Highway Commission. Hence, the evidence here is not sufficient to sustain a charge of negligence by reason of the violation of a speed limit posted pursuant to the provisions of § 47-2004(b)(3), supra.

Second: It is further asserted by appellee that appellant did not 'heed * * * conditions he knew to be more hazardous than normal' i. e., that appellant failed to exercise ordinary care under all the circumstances.

Section 47-2004(a) provides, in pertinent part, as follows:

'No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.'

Subsection (d) of § 47-2004 provides, inter alia, that,

'The driver of every vehicle shall, consistent with the requirements in subsection (a), drive at an appropriate reduced speed when * * * special hazards exist with respect to * * * other traffic by reason of * * * highway conditions.'

The evidence most pertinent here is, in summary, as follows:

On July, 23, 1950, appellee, The Grace Construction and Supply Company, was engaged in the repair of United States Highway No. 24, under contract with the State Highway Commission, from a point commencing approximately 300 feet west of the east corporate limits of the City of Peru, Indiana, and extending eastwardly to approximately 200 feet west of the west corporate limits of Wabash, Indiana. The accident here in question occurred about 2 1/4 miles east of the east corporate limits of Peru, and about 1/2 mile east of a gasoline station where appellant stopped to get some gasoline while on his way to a restaurant located at the county line of Miami and Wabash counties to get some food.

Appellant testified that as he 'slowed down' to turn into the filling station he 'conceivably passed an obstruction in the road',--'some sort of a blockade of the road.' He also testified that to his 'knowledge' he did not 'notice any warning signs along the side of the road' and that he could not remember that he 'noticed any flares' or barricades.

Appellant further testified, on direct examination, that as he approached the barricade involved herein and around which he swerved to the left, he was traveling '50-55 miles per hour.'

A deputy sheriff who was called to the scene of the accident testified, as a witness for appellant-Devine, that it was a 'clear, dry, night', and as he traveled United States Highway No. 24 from Peru to the scene of the accident he observed a series of three black and white signs, one reading, 'Road under construction travel at your own risk', one reading, '15 miles per hour', and a third, 'Slow'; that each had two pots or torches (one on each side) and all were lighted except one; and that he observed a minimum of three lighted barricades between the signs to which he referred and the scene of the accident; that the road was straight for a short distance at the point of the accident and the vision of the driver was not obstructed.

A deposition of William A. Dunn, the project engineer in charge of the repair work being done by appellee on United States Highway No. 24, taken by defendant-appellee, was introduced into evidence by plaintiff-appellant herein. This witness testified that there were black and white signs stating, 'Road Under Construction--Travel at Your Own Risk', and, 'Slow', the latter sign being equipped with reflector buttons placed at each end at the beginning of and as you approached the construction work; that these signs were followed by another sign stating, 'Road Work Ahead', and that all of them were present at all times during the period of construction.

None of this evidence was withdrawn, explained or modified and the testimony of the deputy sheriff and the witness-Dunn, as above summarized, is unimpeached. They were appellant's own witnesses and under the circumstances here present he is bound by their testimony. Burdon v. Wood (1944), 7 Cir., 142 F.2d 303, 306 (Cert. denied, 323 U.S....