Fox v. Barekman

Decision Date26 November 1912
Docket Number22,107
PartiesFox v. Barekman
CourtIndiana Supreme Court

From Daviess Circuit Court; Hileary Q. Houghton, Judge.

Action by Mantle Barekman against Frank P. Fox. From a judgment for plaintiff, the defendant appeals.


A. T Cobb, Cullop & Shaw, Padgett & Padgett, for appellant.

John Wilhelm Sherman, G. Davenport, William R. Gardiner, Clint K Tharp and Charles G. Gardiner, for appellee.


Monks, C. J.

This action was brought by appellee against appellant to recover damages for the loss of services of his minor son, Earl Barekman, from the date of his death until said son would have reached the age of twenty-one years, a period of eight years and nine days, together with the cost of medical services, nursing and funeral expenses.

It is alleged in the complaint that the death of said minor was caused by an automobile, operated by appellant, running against and on appellee's said son, on October 16, from which injury he died on October 21. The complaint is in three paragraphs. The first paragraph alleges that appellant negligently ran the automobile against appellee's son, and thereby caused his death. In the second paragraph it is alleged that appellant was driving the automobile at a speed in excess of that allowed by law on public highways outside of cities and towns. The negligence alleged in the third paragraph is that appellant, instead of using the emergency brake, continued to run the car after he discovered the steering gear was defective, although he saw the group of school children in the road ahead of him. A trial of the cause resulted in a verdict and judgment in favor of appellee. The only error assigned is the overruling of appellant's motion for a new trial.

The first cause assigned for a new trial is that the verdict is not sustained by sufficient evidence. Appellant contends that the evidence shows that the injury was the result of an accident, and not negligence. In support of his theory, appellant "claims that it was shown that a careful inspection had been made [of the machine] before he started on this trip and it was found to be in good repair; that the speed of the car as it approached the group of children was not greater than twelve to fifteen miles an hour and at the time the machine struck the boy not greater than ten miles an hour; that the accident was due entirely to the fact that the connecting rod from the steering column became disconnected from the knuckle on the left front spindle just before the car reached the group of children and that as a result he was unable to guide or control the car." There is evidence on all these points, but there is also a conflict in the evidence as to the speed of the machine. A number of witnesses estimated the speed at which the machine was traveling at the place of the accident at from twenty-five to thirty-five miles an hour. There was evidence to the effect that on the afternoon on which the injury occurred, appellee's son and several other children were walking along the highway on their way home from school. They saw the automobile coming, and got out of the road, some going to one side and some to the other. When the car was a short distance from the group of children it began to leave the road, going to the south side, the side of the road on which Earl Barekman and three others were walking. Earl's companions managed to get out of the way, but he was unable to do so, and was struck by the car. The road, from fence to fence, was forty feet, nine inches wide; from the center of the traveled part of the road to the south fence, seventeen feet, nine inches. There was a ditch eighteen and one-half inches deep on the south side of the road, about three and one-half feet from the fence. Earl Barekman and his companions who went to the south side of the road to get out of the way of the automobile were between the ditch and fence. When the automobile was a distance of, defendant says, from fifty to sixty feet from Earl Barekman, but other evidence given would make it about seventy feet, it left the traveled part of the road, and appellant shut off the gasoline and attempted to guide the machine back into the traveled part of the road, by the steering gear which would not work, and it gradually went to the south side of the road, the front and rear wheels on one side of the car crossed the ditch and the front and rear wheels on the other side remained on the road side of the ditch, and continued in that manner, striking Earl Barekman, who was standing within one foot of the fence, seriously injuring him, from which injuries he died. The machine continued (from the place where the boy was picked up) to a telephone pole (which was two feet from the fence), a distance of sixty-three feet, four inches, and the hub of one wheel struck the pole with sufficient force to tear a wheel off the car and break the cross-head on the pole, and the machine continued seventy-eight feet further, and ran into an oak post of the barbed-wire fence on the south side of the road (a distance of 141 feet from the place where the boy was picked up), with force enough to break said post, where it stopped.

We cannot say from the evidence that the jury was not authorized to find that the machine was running in excess of the speed allowed by law on rural highways, and that such excess of speed was the proximate cause of the injury.

Section 10465 Burns 1908, Acts 1907 p. 558, provides that any person operating a motor vehicle on any public highway shall not operate the same at any rate of speed greater than is reasonable and proper, having regard to the use in common of such highway, or so as to endanger the life or limb of any person, and that in no event shall such motor vehicle be operated at a greater rate of speed than twenty miles per hour. There was evidence on which the jury could have found that appellant was operating the automobile at a greater speed than twenty miles an hour. If appellant was violating this statutory provision in regard to speed, there was negligence per se, and if such violation was the proximate cause of the injury, appellant is liable, unless decedent was guilty of contributory negligence. Pennsylvania Co. v. Hensil (1880), 70 Ind. 569, 574, 36 Am. Rep. 188, and authorities cited; Indiana, etc., Co. v. Barnhart (1888), 115 Ind. 399, 411, 16 N.E. 121; Monteith v. Kokomo, etc., Co. (1902), 159 Ind. 149, 151, 152, 64 N.E. 610, 58 L. R. A. 944, and authorities cited; Pittsburgh, etc, R. Co. v. Lightheiser (1904), 163 Ind. 247, 256, 71 N.E. 218, 71 N.E. 660, and cases cited; Nickey v. Steuder (1905), 164 Ind. 189, 191, 73 N.E. 117, and cases cited; Davis v. Mercer Lumber Co. (1905), 164 Ind. 413, 420, 73 N.E. 899, and cases cited; Evansville Hoop, etc., Co. v. Bailey (1909), 43 Ind.App. 153, 156 (3), 84 N.E. 549, and cases cited; Pittsburgh, etc., R. Co. v. Reed (1909), 44 Ind.App. 635, 646, 88 N.E. 1080, and cases cited; Inland Steel Co. v. Yedinak (1909), 172 Ind. 423, 427 (1), 87 N.E. 229, 139 Am. St. 389, and cases cited; Cleveland, etc., R. Co. v. Tauer (1911), 176 Ind. 621, 96 N.E. 758, 760, (1), and cases cited; 1 Thompson, Negligence § 10; 21 Am. and Eng. Ency. Law (2d ed.) 478, 480-482; 29 Cyc. 436.

Moreover, there was an allegation in the third paragraph of the complaint that appellant was negligent in failing to stop the car, after he discovered that the steering gear would not work, instead of trying to guide it back onto the road. It was shown that the machine was equipped with an emergency brake, and appellant testified that the brake was in good condition. An experienced automobile man testified that the emergency brake on this car would stop the car within forty or fifty feet if running at a speed of thirty miles an hour, and within from twenty to twenty-five feet if running at a speed of from twelve to fifteen miles an hour. There was evidence therefore, from which the jury may have found that if appellant had applied the brake promptly on discovering the fact that the steering gear was broken, the car could have been stopped before it reached the boy, and that the appellant was guilty of negligence in not doing so. We cannot say that there was not sufficient evidence to warrant the jury in finding for appellee.

The next cause assigned for a new trial is that the $ 1,800 damages awarded appellee are excessive. In 13 Cyc. 134 it is said: "Where an action is brought by a husband or father for the loss of earnings or services of his wife or infant child, the question whether the verdict will be deemed excessive depends first upon the age and earning capacity of the party injured; second, upon the expenses incurred; and thirdly, upon the nature and extent of the injuries inflicted." There were five in appellee's family. Appellee, his wife, the decedent and a younger brother and sister. Decedent was thirteen years old at the time of his death. There was evidence that he was obedient and industrious, and that he was able to and did do a man's work around the farm. The value of these services to appellee was variously estimated by witnesses at from $ 200 to $ 1,000 a year, from which should be deducted the boy's maintenance, which was estimated by witnesses at from $ 60 to $ 300 a year.

Considering the rule as to the measure of damages in such cases ( Ohio Valley Trust Co. v. Wernke [1913], 179 Ind. 49, 99 N.E. 734), and that the value of the boy's services during the remaining years of his minority was...

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