Freeport Motor Cas. Co. v. Chafin

• Decision Date: 16 December 1960
• Docket Number: No. 1,No. 19187,19187,1
• Citation: 131 Ind.App. 362,170 N.E.2d 819
• Parties: FREEPORT MOTOR CASUALTY COMPANY, Fred R. Ashby, Appellants, v. Sylvester J. CHAFIN, Appellee
• Court: Indiana Appellate Court

Page 819

170 N.E.2d 819

131 Ind.App. 362

FREEPORT MOTOR CASUALTY COMPANY, Fred R. Ashby, Appellants, v. Sylvester J. CHAFIN, Appellee.

No. 19187.

Appellate Court of Indiana, Division No. 1.

Dec. 16, 1960.

Paul W. Kelley, Kelley, Arnold & Kelley, Anderson, for appellants.

Wayne O. Wimmer, Elwood, for appellee.

MYERS, Judge.

This appeal is the result of an action brought by appellant Freeport Motor Casualty Company as subrogee to the rights of named appellant Ashby, against appellee Chafin, for property damages arising out of an automobile collision.

It was stipulated that the accident occurred on January 5, 1954, at 6:05 a. m., while Ashby, of Chesterfield, Indiana, was driving north on State Road No. 9, and appellee Chafin, of Alexandria, Indiana, was traveling south on the same road, at a portion of the highway approximately three and one-half miles south of the intersection of State Road 128.

It was further stipulated that the Casualty Company was subrogated to the rights of Ashby, pursuant to a certain policy of insurance on the Ashby car wherein the Casualty Company had paid $391.71 in accordance with the terms of that policy. The damage to appellee's car was stipulated to be in the sum of $325.

The complaint alleged that while Ashby was driving his car northward at the above time and place, appellee's car negligently skidded on ice, sliding directly in front of Ashby's approaching automobile, thus causing the collision. Negligent conduct was stated as being appellee's failure to have his car under control, operating his vehicle on the left side of the roadway into the path of Ashby's car, and failing to maintain a proper lookout for those who were lawfully using the highway. Damages were asked in the sum of $391.71.

Appellee filed a paragraph of answer amounting to a general denial, and a second paragraph in which he asked the court to make Ashby a party plaintiff to the action. This was approved by the court, summons was issued, and Ashby was duly brought into the litigation as a necessary party.

Appellee then filed an amended counterclaim in which he claimed that the collision was caused by negligence on the part of Ashby, which was alleged as follows: That Ashby was driving at a speed which was greater than was reasonable and prudent under the circumstances in view of the icy and slippery condition of the road, towit: 35 miles per hour; that he failed to apply his brakes; that he failed to keep his car under control; that he saw appellee and his place of peril in time to stop or change the course of his car in order to avoid striking appellee's car. Damages were asked in the sum of $500.

The issues were formed when appellants filed separate answers generally denying the allegations contained in the amended counterclaim. The cause was submitted for trial to the court without a jury. Findings and judgment were entered in favor of appellants upon appellee's cross-complaint, and in favor of appellee upon appellants' complaint, with costs taxed against appellants. A motion for a new trial was duly filed by appellant Casualty Company, stating that the finding of the court was not sustained by sufficient evidence and was contrary to law. This motion was overruled, and from that action appellant Casualty Company appeals. Appellee made no attempt to appeal from the judgment against him.

The evidence most favorable to appellee reveals that on January 5, 1954, at approximately 6:05 a. m., Ashby was driving his automobile in a northerly direction on State Road No. 9 at a place approximately 3 1/2 miles south of Alexandria, Indiana. This was a two-lane roadway with traffic going in both directions. At that particular stretch it was covered with ice. There was testimony that: 'It was so slick you could not even stand up, on foot.' Snow had fallen previously and was lying on the ground. There was conflicting evidence as to whether or not it was snowing at the time. Cars on the road had their lights on, although with the arrival of morning it was not altogether dark, but 'dingy.'

At this time and place appellee was driving in a southerly direction on the highway, at a speed of between 20 and 25 miles per hour. Suddenly his automobile started to slide on the ice. He attempted to correct it without avail. It slid to the left, with the rear end spinning around in a half-circle into the other lane of the highway directly in front of Ashby's vehicle. There was a collision, with the front end of Ashby's car being hit squarely in the center grill by the right rear end of appellee's car. The liability for the damages done to the two vehicles is the subject-matter of this lawsuit.

Ashby testified that when he saw appellee's car sliding toward him he put on his brakes, but started to skid and released them. He was asked: 'Is there anything which you could have done to avoid this accident, which you did not do?' His answer was: 'No, sir; there was nothing.'

This was a negative judgment in that appellant Casualty Company was denied recovery on the basis of its complaint. Therefore the specification of error in the motion for new trial, that the decision of the court was not sustained by sufficient evidence, is not available. We must proceed on the only other specification of error, that the decision is contrary to law. Ruegamer v. Haynes Stellite Company, Ind.App.1960, 167 N.E.2d 725; Von Cline v. Cline, Admrx, Ind.App.1960, 165 N.E.2d 608.

Appellant Casualty Company argues that at the time of the accident there were two Indiana statutes in effect pertaining to rules of the road requiring drivers to drive their vehicles on the right side of the highway; that appellee violated both of these statutes; that such violation was prima facie evidence of negligence on the part of appellee, which was not rebutted. Appellants further contend that appellee was under a duty to come forward with evidence to excuse himself from compliance with the statutes, which he failed to do; that skidding on ice is not a justifiable excuse for noncompliance with the statute; that such skidding was the proximate cause of the accident and the resulting damage.

Appellee...