Drewrys Limited, United StatesA. v. Crippen
| Decision Date | 01 December 1942 |
| Docket Number | 16830. |
| Citation | 44 N.E.2d 1006,113 Ind.App. 120 |
| Parties | DREWRYS LIMITED, U. S. A., Inc., v. CRIPPEN. |
| Court | Indiana Appellate Court |
Seebirt Oare & Deahl, of South Bend, for appellant.
Hillis & Hillis, of Logansport, and Joseph G. Ettl, of South Bend, for appellee.
DE VOSS, Judge.
Appellee brought this action to recover for personal injuries received in an automobile collision occurring in the City of Logansport, Indiana. The complaint is in one paragraph and alleges generally that appellee was operating an automobile eastwardly on West Market Street in the City of Logansport and that she attempted to cross the intersection of Cicott Street, and while driving through such intersection, the appellant, by its employee, who was approaching from the east on Market Street, and in the intersection of Cicott Street suddenly and carelessly turned his said automobile to the left and immediately in front of the automobile of appellee thereby causing a collision whereby appellee was injured. It is further alleged that the driver of the appellant's car was negligent and that he failed to give any signal or warning of turning to the left and failed to slow up, and carelessly and negligently made a left-hand turn in front of appellee who was then in the intersection.
To this complaint, the appellant filed an answer in general denial.
Trial was had by a jury which returned a verdict for appellee together with answers to forty-one interrogatories submitted by appellant.
Upon the return of such verdict, appellant filed a motion for judgment on answers to interrogatories which motion was by the court overruled and thereupon the appellant filed its motion for a new trial which motion was also by the court overruled and judgment was entered for appellee.
The errors relied upon for reversal are:
(1) The error of the court in overruling the appellant's motion for judgment on the answers to interrogatories.
(2) Error of court in overruling the appellant's motion for a new trial.
The specific reasons set out in the motion for a new trial and discussed in appellant's brief are:
(1) The verdict of the jury is not sustained by sufficient evidence.
(2) The verdict of the jury is contrary to law.
(3) Error of court in refusing to give to the jury each of the instructions requested by the defendant, numbered 18 and 19.
(4) Error of court in giving to the jury of its own motion instruction numbered 4.
Under the first assigned error, it is contended by the appellant that the answers to the interrogatories are in irreconcilable conflict with the general verdict, and that the answers to such interrogatories disclosed appellee to have been guilty of contributory negligence as a matter of law and therefore the general verdict must fall and the answers to the interrogatories prevail.
In support of the first contended error, it is argued by appellant that the answers to interrogatories establish the fact that appellee did not look and consequently did not see what was in plain sight, directly in front of her in line of traffic; that she continued to drive into the southwest quarter of the intersection without looking and without seeing appellant's truck until within four or five feet thereof and that at that time she was unable to stop and crashed into the tractor of appellant's truck. The interrogatories which appellant contends established these facts are as follows:
No. 19. Does Heath Street run north and south parallel with Cicott Street one block to the west? A. Yes.
No. 20. At what speed was the automobile driven by Mrs. Crippen going at the time she crossed Heath Street. A. Approximately 25 miles per hour.
No. 21. From the time she passed Heath Street until the time when she was within four or five feet of the collision in the intersection, did she apply her brakes? A. No.
No. 23. Did she see defendant's truck from the time defendant's truck entered the intersection until the time she saw defendant's truck four or five feet in front of her automobile? A. No.
No. 24. Was there anything to prevent her from seeing the truck between the time the truck entered the intersection and the time it had completed the turn to the place where she saw it, four or five feet ahead of her? A. No.
No. 27. When the plaintiff entered the intersection from the west was the tractor of defendant's truck in the southwest quarter of the intersection? A. Front end of tractor, yes.
No. 29. As plaintiff approached the intersection from the west could she in the exercise of ordinary care have seen defendant's truck in time to have slowed down her car and avoided the accident? A. Yes.
No. 30. Could the plaintiff have seen the defendant's truck after it had turned left at the intersection in time to have stopped her automobile before the collision if she had approached the intersection with caution? A. No.
No. 36. Did defendant drive into the plaintiff or did plaintiff drive into the defendant? A. Plaintiff drove into defendant.
No. 40. Could she have in the exercise of ordinary care seen the flasher upon approaching the intersection? A. Yes.
Of the above interrogatories, Nos. 29 and 30 are improper. Each of them involves a question of law. Tucker Freight Lines v. Gross, 1941, 109 Ind.App. 454, 33 N.E.2d 353.
It may be said that the answers to the above interrogatories considered by themselves might tend to establish the fact that appellee was negligent, but before appellee would be precluded from recovery in the action by reason of her negligence, it must further appear that not only was she negligent, but that such negligence contributed to her injury and the interrogatories above set out fall short of establishing this fact. In ruling on the question as to whether or not the interrogatories shall prevail this court can consider only the pleadings, the general verdict, the interrogatories and the answers thereto.
The general verdict is a finding for the appellee on every material fact and to overthrow it the answers to the interrogatories must be in irreconcilable conflict therewith. All of the interrogatories and the answers thereto must be considered in determining whether judgment should be given on such answers and it is only when the interrogatories and answers thereto taken and considered as a whole are irreconcilable with the general verdict that the former will overcome the latter. In determining whether there is a conflict in the general verdict and answers to the interrogatories, every presumption and inference is resolved in favor of the general verdict. Nothing will be presumed or inferred in favor of answers to interrogatories as against the general verdict and if answers to two or more interrogatories are inconsistent and antagonistic to each other, they nullify and destroy each other and cannot control the general verdict. Standard Oil Company of Indiana et al. v. Thomas, 105 Ind.App. 610, 13 N.E.2d 336.
The general verdict, interrogatories and answers thereto establish the fact that Cicott Street and West Market Street at the intersection were each 40 feet wide and that after appellant's truck approached Cicott Street on Market Street, it moved towards the center of Market Street. That there was a flasher signal operating at the time of the accident in...
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