Eberhart v. Abshire

• Decision Date: 31 October 1946
• Docket Number: No. 8902.,8902.
• Citation: 158 F.2d 24
• Parties: EBERHART v. ABSHIRE.
• Court: U.S. Court of Appeals — Seventh Circuit

158 F.2d 24 (1946)

EBERHART v. ABSHIRE.

No. 8902.

Circuit Court of Appeals, Seventh Circuit.

October 31, 1946.

George R. Jeffrey, of Indianapolis, Ind., for appellant.

Charles A. Lowe, of Lawrenceburg, Ind., and Clinton H. Givan, of Indianapolis, Ind., for appellee.

Before KERNER and MINTON, Circuit Judges, and BRIGGLE, District Judge.

KERNER, Circuit Judge.

This is a personal injury case resulting from an automobile collision. The jury returned a verdict for the plaintiff upon which a judgment was entered against defendant and Harley May, who, while a defendant in the District Court, has not utilized his privilege of appeal here. Reversal is urged only on two grounds: that the trial judge erred in his charge to the jury, and that the alleged negligent conduct of Abshire was not the proximate cause of the plaintiff's injury.

The facts: On July 21, 1943, at about 1:00 p. m., Madge Givan was standing beside U. S. Highway 50 preparatory to taking a bus to the city of Lawrenceburg. She was stationed at a point where buses regularly stopped upon signal to receive passengers. The weather was clear and the visibility was unobstructed for about onequarter of a mile. At the site of the accident U. S. Highway 50 ran in an easterly and westerly direction. It was a four lane highway with a dividing strip four feet in width which was raised approximately four inches and which bisected the highway. This strip was continuously raised except at openings for passage from one side of the highway to the other. Each lane of traffic was 10 feet wide and the two lanes on either side of the center strip at the time of the accident were well marked by a black dividing line. The south side of the highway, or the side where the collision occurred, was marked by a guard rail or barrier consisting of a strip of metal fastened to posts, approximately 20 inches high. The posts were set about 16 feet apart and the barrier was continuous except where openings were left for public or private drive-ways. The barrier was approximately five feet and eight inches south of the outer cement lane of the east bound traffic. The unpaved space between the pavement and the barrier was practically level (from the photographs in evidence this portion appears to run to wild grass common to highways outside city limits).

While Madge Givan was waiting for the bus, defendant Abshire drove his automobile from the general direction of the west, headed east, and stopped it just west of the plaintiff. There is a dispute as to how far the Abshire automobile extended onto the outer lane of the eastbound traffic but it is stipulated that the left wheels were on the cement. Abshire was waiting to pick up some children who were coming down a private road northwest of his automobile. He remained inside the standing automobile and had been there for a period of 5 to 10 minutes when a truck operated by defendant May approached from behind and headed in the same direction as the Abshire car faced. While there is a disagreement as to the rate of speed of the truck, it is established that it struck the Abshire car on its rear left side with such force that the impact pushed Abshire's automobile forward in such a manner that the front of the car struck the plaintiff and injured her so severely that she later was forced to submit to an amputation of the right leg. After the collision the truck continued forward and plowed through the barrier to the south of the highway. During the pendency of this appeal her death has been suggested and the cause has proceeded in the name of the administrator of her estate.

The defendant contends that the District Court's interpretation of the applicable Indiana statute regarding stopping an automobile on the highway, § 47-2120, Burns' Indiana Stat. Ann. 1933, was incorrect, and that such an interpretation when incorporated in the court's instructions to the jury was clearly erroneous. The statute states:

"(a) Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event, a sufficient unobstructed width of the roadway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of two hundred 200 feet in each direction upon such highway.

"(b) This section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position."

The jury was instructed that: "Regardless of whether or not it was on the pavement entirely, or only partially, it was in violation of a certain statute of the State of Indiana unless it was not practicable to park at some other place." Defendant argues that whether he had violated the statute was a factual question to be submitted to the jury, and that stopping an automobile on the pavement, either partially or entirely, does not necessarily constitute a violation of law.

While each case must be considered separately and according to its own circumstances, nevertheless the statute remains as the gauge to be applied to each factual situation. Here the time was 1 p. m., the weather was clear and visibility unlimited, the pavement was dry, and there was sufficient room for an eastbound vehicle to pass the defendant's automobile. But at the point in question there was a slight curve in the highway. In addition there was a guard rail or barrier less than six feet from the southernmost paved portion of the highway which prevented an automobile of normal width from being driven completely off the highway. The width of Abshire's automobile was approximately six feet and it is conceded that he did not have it placed against the barrier. Abshire could have moved forward on the highway some 30 to 40 feet to a point where the barrier ended, where a private driveway ran into the highway, and driven completely off the highway. He failed to do this, because, as he explained it, he had been stopping at this particular spot on and off for eight years as it was the most convenient for him and his neighboring child...