Gaines v. Taylor

• Decision Date: 21 April 1933
• Docket Number: No. 14567.,14567.
• Citation: 185 N.E. 297,96 Ind.App. 378
• Parties: GAINES et al. v. TAYLOR et al.
• Court: Indiana Appellate Court

96 Ind.App. 378

185 N.E. 297

GAINES et al.

v.TAYLOR et al.

No. 14567.

Appellate Court of Indiana, in Banc.

April 21, 1933.

Appeal from Gibson Circuit Court; Claude A. Smith, Judge.

Suit by John Taylor against Cora A. Williams and others. From a judgment in favor of the plaintiff and against the defendant Wallace A. Gaines and Tillie Y. Gaines, a verdict having been returned in favor of Cora A. Williams, the defendants appeal.

Judgment affirmed.

Embree & Baltzell, of Princeton, for appellants.

McDonald & McDonald, of Princeton, and Benj. F. Zieg, of Evansville, for appellees.

DUDINE, Judge.

Appellee John Taylor filed suit for damages for personal injuries alleged to have arisen out of a collision of the automobile of appellee Cora Williams and the ambulance of appellants in which he was being transported from a hospital to his home as a passenger for hire.

The collision occurred at the intersection of Elliot street and Lincoln avenue in the city of Evansville. Lincoln avenue was, at that time and place, a “thru” street by virtue of an ordinance of the city council of said city. Appellee Cora William's automobile was proceeding eastward on Lincoln avenue, and appellant's ambulance was proceeding southward on Elliot street at the time of the collision.

The issues were formed by an amended complaint in one paragraph, and an answer of general denial filed by appellee Cora Williams, an answer in three paragraphs filed by appellants, and a reply in general denial to appellant's second and third paragraphs of answer.

Appellant's first paragraph of answer was a general denial. Their second and third paragraphs of answer, each, were based on a separate ordinance of the city of Evansville which gave ambulances preference in traffic. Trial was had by a jury, which found for appellee John Taylor against the appellants, and found for appellee Cora A. Williams. Judgment was rendered on the verdict, and appellants filed a motion for new trial, which was overruled, whereupon appellants appealed to this court. The overruling of said motion for new trial is the only assigned error relied upon for a reversal.

The grounds for a new trial stated in the motion, which are discussed in appellant's brief are: (1) the verdict is contrary to law; (2) the verdict is not sustained by sufficient evidence; (3) the court erred in giving each of the instructions numbered 5 and 12; (4) the court erred in admitting a certain drawing as evidence over objection of appellants.

These grounds will be discussed in the order named.

[1] To support their contentions that the verdict was contrary to law, and that the verdict was not sustained by sufficient evidence, appellants cite a portion of section 10154, Burns' Ann. St. Supp. 1929, which reads as follows: “Motor vehicles and motor bicycles operated by municipal police and fire departments, motor vehicles used in transporting the United States mails, and ambulances shall have the right of way over all other motor vehicles, motor bicycles and other vehicles.” Appellants contend that by virtue of this statute their ambulance was in a place “where it had a right to be” when it was struck by the automobile driven by Cora A. Williams, and therefore no fault can be attributed to the driver of the ambulance, and therefore the verdict was not sustained by sufficient evidence, and was contrary to law.

To follow this contention to its logical conclusion, we would have to hold that said statute clothed appellants with immunity from liability for collisions of their ambulance with other vehicles in traffic. Said statute does not do that; it merely gives ambulances and other specified vehicles preference. It does not remove from the drivers the obligation of exercising such care, in operating said vehicles, as ordinary prudent men would use under the circumstances; on the contrary, drivers of such vehicles must use due care in the operation of such vehicles and in the exercising of the preference given to such vehicles by the statute. Blasengym v. Gen. Acc., etc., Corp. (1929) 89 Ind. App. 524, 165 N. E. 262;Wolf v. Vehling (1923) 79 Ind. App. 221, 137 N. E. 713.

[2] We think appellants have misconstrued the phrase “contrary to law,” as they have applied it to the verdict in this case. They do not contend that the verdict or finding, in its general scope, is contrary to law, but merely contend that the verdict is contrary to law because said statute clothed appellants with immunity from liability. They have ignored the law of negligence as it applied to them in this case.

A verdict is “contrary to law” in the sense that a new trial should be granted for the reason that it is contrary to law, “when, in its general scope and meaning, it is contrary to the principles of law applicable to the case, and not merely defective in some particular.” Anderson v. Donnell et al. (1879) 66 Ind. 150, 160; Watson's Works on Practice and Forms, § 1996. In the case of Louisville, etc., Ry. Co. v. Renicker (1893) 8 Ind. App. 404, 35 N. E. 1047, and in the case of Phenix Ins. Co. v. Rogers et al. (1894) 11 Ind. App. 72, 38 N. E. 865, 869, this court quotes with approval from Buskirks' Practice as follows: “A motion for a new trial on the ground that the verdict or decision is contrary to law is in the nature of a demurrer to the evidence. It admits all the evidence given upon the trial, but says that, as the verdict or decision based upon such evidence is contrary to the general principles of the law applicable to the issues involved, judgment should not be...