Fishman v. Eads

• Decision Date: 25 October 1929
• Docket Number: No. 13122.,13122.
• Citation: 90 Ind.App. 137,168 N.E. 495
• Parties: FISHMAN v. EADS.
• Court: Indiana Appellate Court

90 Ind.App. 137

168 N.E. 495

FISHMAN

v.EADS.

No. 13122.

Appellate Court of Indiana, in Banc.

Oct. 25, 1929.

Appeal from Superior Court, Marion County; Joseph W. Milner, Judge.

Action by Jennie Eads against Sam E. Fishman. Judgment for plaintiff, and defendant appeals. Affirmed.

Fesler, Elam & Young and Irving M. Fauvre, all of Indianapolis, for appellant.

B. Howard Caughran, of Indianapolis, for appellee.

NEAL, J.

The appellee, plaintiff below, by her complaint for damages, alleges in substance as follows: That on the 24th day of August, 1924, about 9 o'clock in the evening, she was lawfully and carefully walking across West Thirtieth street near East Riverside drive in that part of the city of Indianapolis which is included within Riverside drive; that the defendant (appellant herein) was the owner of a Ford automobile, which he was then driving east along West Thirtieth street near east Riverside drive; that he (the appellant) “was at said time and place, driving said automobile in a careless, negligent and reckless manner, utterly unmindful of his duty to the pedestrians who were then lawfully on said street in this-that said defendant carelessly and negligently failed to watch the road ahead of his automobile or to heed the fact that there were in said street and in the immediate course of said automobile several persons crossing said street, including the plaintiff”; that “the defendant carelessly and negligently failed to slow down and notify said pedestrians of the sudden approach of his said automobile either by sounding his horn or giving any other signal or warning, as is required by the laws of the State of Indiana, then in full force and effect”; that, while the plaintiff, in company with other pedestrians, and in the exercise of due and proper care, was walking across West Thirtieth street, the defendant carelessly, negligently, and recklessly drove his automobile with great force and violence upon and against the plaintiff; that she suffered severe injuries, in that her right leg was broken above the knee, and that she, in the attempt to cure herself, has been forced to, and has, paid out and expended large sums of money for medicine and medical supplies, etc. Appellant answered by a general denial. The case was submitted to a jury, which returned a verdict for the appellee in the sum of $900. Appellant's motion for a new trial was overruled, which ruling is assigned as error. The reasons or causes presented for our consideration are that the verdict is not sustained by sufficient evidence, and the verdict is contrary to law.

The evidence discloses that West Thirtieth street in the city of Indianapolis is paved to a width of 30 or 40 feet; that Riverside Park is an amusement place visited by the citizens, not only of Indianapolis, but elsewhere throughout the state, and West Thirtieth street for a considerable distance forms the south boundary line of the park; that at the park is an amusement known as the “Old Mill,” which is very near the curb line on the north side of West Thirtieth street; that the Indianapolis Street Railway Company maintains a loop on its lines, which loop is directly opposite the “Old Mill,” and at a place a few feet south of the curb line on the south side of West Thirtieth street; that at the loop passengers are discharged who intend to visit the park, and likewise passengers are taken away from the park; that people going and returning from the park pass over West Thirtieth street at a place in line with the “Old Mill” and the loop, although there is no street intersection at the particular point so used by pedestrians who desire to enter or leave the park; that West Thirtieth street from a point in line with the loop and the “Old Mill” is in a “bend,” and from said point it is a short square to the White River bridge.

On August 24, 1924, appellee, who was a resident of Osgood, Ind., was visiting her son in Indianapolis. She was a married woman, and 65 years of age. In the afternoon of August 24, in company with her son and his family, she visited Riverside Park. In the afternoon a slight rain fell, but at about 9 o'clock in the evening the street was dry, and no rain was in evidence. At the time last mentioned the appellee and other members of the party, which consisted of about ten persons, gathered at the “Old Mill” for the purpose of returning home; the mother-in-law, granddaughter, and grandson of appellee proceeded to cross West Thirtieth street, and did so cross the street to the south side thereof, walking in practically a straight line from the “Old Mill”; they were followed very closely by the appellee, who at the time had a “clear space across the street”; and other members of the party immediately followed appellee. When appellee was within approximately 6 feet of the south curb line, an automobile driven by appellant, an old Ford sedan with lights dimmed, “came around,” and the right front fender of the Ford struck appellee, knocked her sideways, breaking her leg. The Ford car was moving at a speed of between 15 and 20 miles per hour. Appellant's car moved a distance of from 16 to 30 feet after striking appellee, taking into consideration the length of the car. Appellant did not check his car or give appellee a timely warning by sounding his horn or by signaling to her of his approach.

One witness said on cross-examination in answer to the following questions: “You say your mother-in-law, when she fell, sort of crumpled, what do you mean by that? A. She fell, it knocked her clear of the car. Q. In what way? A. Knocked her south. Q. Went straight south did she? A. Not exactly, sort of sideway.” And another witness said on direct examination: “At that time I heard my cousin Vivian Branham-my grandmother, Mrs. Eads had crossed the street and I was still on the north side, and she was crossing and was pretty well across, and I noticed a car coming down 30th street, and did not pay much attention, but heard my cousin Vivian Branham scream. The next thing I saw my grandmother on the street, and a Ford sedan slow down in front, that is, east of her. There were three or four persons crossing the street at that time.” And the same witness said in answer to the following question: “Q. Where did the accident occur? A. On 30th street at the bend, where it makes a bend, on the south side of 30th street.”

Several witnesses who were on the south side of the street or in the act of crossing gave evidence to the effect that they first saw appellant's automobile when within 4 feet of appellee, and one witness, who was on the north side of the street, said he saw the automobile about 20 feet away to the west. Appellee says she first observed appellant's car when within about 2 feet from her, and she moved to avoid it, when the right fender struck her.

The appellant and his witnesses have evidence that he (appellant) was driving an old Ford sedan, as above indicated. Seated in his car were eight other persons, consisting of his family and relatives. On the night in question he was driving east on West Thirtieth street, intending to stop at Riverside Park and hear the music. A Mrs. Ginsberg was riding in the front seat with appellant. She said: “I saw her (meaning appellee) and the people crossing, and she was almost across the street.” One Muriel Fishman said: “The lady had started across the street, she seemed to slip, taking hold of the fender of our car as she fell by the side of the car.” The appellant said on cross-examination: “Q. How fast was Mrs. Eads coming when she struck your car, as you say? A. Was not coming very fast; she was not sure of her feet.” All of the witnesses for the appellant said the Ford sedan was standing still; that they had stopped with the traffic, and were looking for a place to park.

The evidence is to the effect that a person standing near the “Old Mill” looking west had a clear view to the bridge about 300 feet away. However, the evidence does not disclose the degree of the curve at the point of the accident or the distance appellee or others could have observed an automobile approaching from the west on Thirtieth street. The appellee said the automobile just “came around.”

[1][2][3][4][5] It has often been stated in opinions of the various courts that, where there is a general verdict for the plaintiff, the court on appeal will sustain the verdict of the jury, “if there was any competent evidence tending to establish any one of the several acts of negligence charged in the complaint,” and such act of negligence is the proximate cause of the injury sustained by the appellee (Davis v. Welch, 80 Ind. App. 334, 140 N. E. 439); that in an action for personal injuries a general verdict in favor of the plaintiff is, in effect, a finding in his favor on the issues of negligence, as well as upon every other issuable fact necessary to sustain his cause of action (Union Traction Co. of Indiana v. Sullivan, 38 Ind. App. 513, 76 N. E. 116); that in determining any material question in issue the jury has the right to consider all of the evidence introduced by the party having the burden of such issue or by his opponent” (Pearcy v. Floyd, etc., Lumber Co., 186 Ind. 136, 115 N. E. 90); that the burden of proof on the question of contributory negligence is on the defendant, and whether or not a given state of facts shows contributory negligence, considering the evidence as a whole, is generally a question to be determined by the jury, “unless” such facts “are undisputed, and such as to impel an inference of negligence in the minds of all reasonable persons.” C., I. & W. R. R. v. McGaughey, 85 Ind. App. 1, 147 N. E. 727, 728.

[6] With the above principles of law in mind, we will proceed to examine appellant's propositions, viz. There is absolutely no evidence from any one showing a single act of negligence on the part of the defendant; the uncontradicted evidence shows that appellee was guilty of contributory negligence. Burns' Rev. St....