Devine v. Grace Construction Co. & Supply Co., 19335

CourtCourt of Appeals of Indiana
Citation177 N.E.2d 476
Docket NumberNo. 1,No. 19335,19335,1
PartiesJohn P. DEVINE, Appellant, v. GRACE CONSTRUCTION AND SUPPLY COMPANY, an Indiana Corporation, Appellee. *
Decision Date18 October 1961

Page 476

177 N.E.2d 476
John P. DEVINE, Appellant,
Corporation, Appellee. *
No. 19335.
Appellate Court of Indiana, Division No. 1.
Oct. 18, 1961.
Rehearing Denied Nov. 28, 1961.

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

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

Page 477

AX, Judge.

This action was commenced by appellant against appellee upon a complaint to recover damages for personal injuries suffered by appellant when he swerved his automobile, which he was driving on a public highway at night to avoid an alleged unlighted barricade stretched across the lane of the public highway, and struck an abutment. Appellee was engaged in repairing said highway for the State of Indiana and had placed the barricade across said public highway. The appellant alleged the following acts of negligence:

(1) Appellee failed to maintain warning lights at said barricade;

(2) appellee failed to maintain signs giving advance warning of the presence of the barricade;

(3) appellee failed in every manner whatsoever to give warning of the presence of said barricade.

Appellee filed answer in two paragraphs, the first under Rule 1-3, amounting to a denial of all material allegations, and the second an answer alleging that appellant assumed and incurred the risk when traveling on said public highway while the same was under construction and was duly posted with warning signs to that effect. The issues were closed upon the filing by appellant of a reply essentially denying the allegations of appellee's second paragraph of answer.

At the conclusion of the evidence of appellant, appellee moved and requested the court to instruct the jury to return a verdict for appellee, which motion was granted by the court, verdict for the appellee returned, and consistent judgment was rendered in favor of appellee.

Appellant's assigned error was the overruling of his motion for new trial in which he claimed that the court erred in sustaining the motion of appellee, at the close of appellant's evidence, to direct the jury to return a verdict for the appellee.

We recognize the following well established rules of law governing the propriety of directing verdicts:

'A directed verdict is proper and a peremptory instruction should be given where there is a total absence of evidence on an essential issue, or where the evidence is without conflict and is susceptible of but one inference in favor of the party asking such instruction. * * *' 1 28 West's I.L.E. Trial § 136, p. 130.

'Where there is failure of proof on a material point in evidence of the party having the burden of issue, the court may instruct the jury in favor of the other party to such issue as a matter of law. * * *' 2 28 West's I.L.E. Trial § 136, p. 131.

'The court may properly direct a verdict for defendant where the evidence introduced by plaintiff wholly fails to establish any cause of action in his favor under the issues, 3 where the testimony affords no basis for a recovery in favor of the plaintiff, 4 or where the evidence most favorable to the plaintiff, together with all reasonable inferences which a jury might draw

Page 478

therefrom, is insufficient to establish one or more of the facts essential to plaintiff's right of action, 5 or insufficient to sustain a verdict in his favor.' 6 28 West's I.L.E. Trial § 136, pgs. 131-132.

We likewise recognize the following well established rule pertaining to the impropriety of directing verdicts.

'Where the determination of an issue involves the credibility of witnesses and rests on inferences and deductions from the facts proved, the direction of a verdict is an invasion of the jury's province and improper. 7 Thus a verdict should not be directed where there is a conflict in the evidence, 8 or where there is any evidence of probative value, or any legitimate or reasonable inference to be drawn from such evidence tending to support the case of the party against whom the directed verdict is asked.' 9 28 West's I.L.E. Trial § 137, p. 133.

'A court should not give a peremptory instruction for the defendant unless there is a total absence of evidence or reasonable inference on at least one essential element of the plaintiff's case, 10 or unless there is no conflict in the evidence and it is susceptible of but one inference which precludes recovery. 11 It is only when the plaintiff fails to make a case, so that it would be the duty of the trial court, or of a higher court on appeal, to set aside the verdict as not being supported by any competent evidence on some material point, that a verdict for the defendant should be directed.' 12 28 West's I.L.E. Trial § 137, pgs. 133-134.

'Where there is some or any evidence which with all its reasonable inference and intendment fairly tends to prove the plaintiff's case, a peremptory instruction in favor of the defendant should not be given. 13 The court cannot give a peremptory instruction for the defendant where there is some competent evidence to sustain a verdict for the plaintiff.' 14 28 West's I.L.E. Trial § 137, p. 134.

With these legal principles in mind, we have carefully examined the evidence pointed

Page 479

out by appellant in his brief and as set out in the transcript.

A review of the material evidence substantially shows that appellant, a Music Supervisor of the City of Peru, at approximately 1:45 a. m. on the 13th day of July, 1950, while driving his automobile alone in an easterly direction on U.S. Route #24, at a speed of between 50 and 55 miles per hour, came upon a wooden barricade stretched completely across the south lane used for east bound traffic. The highway was a two-lane highway. The location of this barricade which was immediately in front of a hole in the highway was approximately 2- 1/4 miles east from the east edge of the city limits of Peru. The appellant saw no warning signs giving advance notice of the presence of said barricade, nor did he see any speed limit signs, although he saw an obstruction in the road about one-half mile west of the barricade as he turned into a filling station to get some gasoline. Leaving the filling station and going east on a straight stretch of road of about a one-half mile distance between the station and the barricade across the highway, appellant saw no warning signs nor barricades of any nature. As appellant came upon this barricade, he applied his brakes, which were in good working order, and swerved his car to the left to avoid the barricade and went on to the north or west bound lane of traffic. Upon seeing lights coming from the east to the west in this line of traffic, he turned his car further to the left and hit a bridge abutment. As a result of this collision, the record shows that appellant suffered injuries, pain, loss of earnings and some permanent partial impairment.

The evidence shows that the appellee at the time and place of the accident was engaged in the process of repairing the highway and had erected the barricade.

Appellee has advanced the argument that there is a conflict in the testimony between appellant's own witnesses and appellant pertaining to the question of the warning signs and lights which appellee claimed to be adequate to warn appellant of the condition of the highway and barricade.

The record shows that appellant called as a witness the deputy sheriff who had investigated the accident a few minutes after its occurrence. This witness testified that when he arrived at the scene a few minutes after the accident he found the barricade and one unlighted kerosene pot lamp down in the hole being repaired in the highway. This witness also testified that at the east edge of Peru along the right or south side of highway #24, there were three signs, the first a black and white sign that said, 'Road under construction travel at your own risk,' a second similar sign a few feet further east that said, '15 miles per hour,' and a little further down the highway a fairly large black and white diamond shaped sign with the word, 'Slow.' According to this witness, these signs were lighted only by two pot lights or torches at each sign, one in front and one on the side of the road; however, on one of these signs there was only one pot light which was burning. This witness also testified that there were three barricades between the east city limits of Peru and the scene of the accident. He was not definite about the spacing of these three barricades in relation to the barricade at the scene of the accident, and his testimony was indefinite on the question of whether or not there were two pot torches at each barricade that were burning at the time that he went to view the accident. Upon returning to Peru he stopped and lit several of the unlighted pot torches. Apparently from his testimony these lights would occasionally go out, caused by the wind of passing trucks or automobiles.

Appellant also introduced in evidence a deposition taken by the appellee of the project engineer for the Indiana State Highway Commission, whose job was to supervise the reconstruction...

To continue reading

Request your trial
1 cases
  • Devine v. Grace Const. & Supply Co., 30242
    • United States
    • Supreme Court of Indiana
    • 24 Abril 1962
    ...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 It is an action by appellant to recover damages for personal injuries allegedl......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT