Gamble v. Lewis

CourtSupreme Court of Indiana
Citation85 N.E.2d 629,227 Ind. 455
Docket NumberNo. 28550.,28550.
PartiesGAMBLE et al. v. LEWIS.
Decision Date02 May 1949

227 Ind. 455
85 N.E.2d 629

GAMBLE et al.

No. 28550.

Supreme Court of Indiana.

May 2, 1949.

Action by Everett Lewis against Bernice Gamble and Lora Gamble for personal injuries and property damages resulting from motor vehicle collision wherein the defendants filed counterclaims. From a judgment for plaintiff for $6,850, the defendants appeal.

Judgment reversed and new trial ordered.

Superseding opinion in 78 N.E.2d 878.

[85 N.E.2d 631]

Appeal from Hamilton Circuit Court; Tom R. White, Judge.
Cooper & Martin, of Indianapolis, Campbell & Campbell, of Noblesville, and Harry P. Cooper, Jr., and C. Wendell Martin, both of Indianapolis, for appellants.

Christian & Waltz and Garrison & Castor, all of Noblesville, for appellee.

EMMERT, Judge.

This is an appeal from a judgment on a verdict awarding the appellee the sum of $6,850 for personal injuries and property damages on two paragraphs of complaint for negligence in causing an automobile collision. The appellants had each filed counter-claims, and the verdict found against each appellant on those issues.

The appellants' motion for new trial assigned as causes therefor the insufficiency of the evidence and that the verdict was contrary to law, error in refusing to give to the jury certain instructions requested by the appellants, and prejudicial misconduct on the part of counsel for appellee.

[85 N.E.2d 632]

The appellee insists that the bill of exceptions containing the evidence is not properly in the record for the reason that the clerk's certificate to the transcript does not authenticate such bill of exceptions. Assuming, without deciding, that the clerk's certificate is insufficient, appellee is not now in a position to challenge the error. The appellee applied for and received an extension of time for the filing of his briefs. Rule 2-16 requires the petition to ‘state facts showing that the court in which the cause is pending has jurisdiction and that the brief will be on the merits.’ An objection that the evidence is not in the record does not go to the merits of the appeal, and by his petition for extension of time the alleged error was waived. Brodt v. Duthie, 1933, 97 Ind.App. App. 692, 186 N.E. 893.

Appellee has shown no cause for us to sustain his contention that because a copy of a certain disagram used by certain witnesses to illustrate their testimony was not in the bill of exceptions, the record affirmatively shows all the evidence is not before this court, and therefore we cannot consider the bill of exceptions containing the evidence. On this contention there are no authorities cited under his ‘Propositions, Points and Authorities.’ Rule 2-18 provides shall be grouped the Rule 2-18 provides that ‘Under each of points of law and authorities relied upon to support it, in like manner as required in appellant's brief.’ See Anderson v. Moise, 1945, 116 Ind.App. 240,64 N.E.2d 303;Carithers v. Carithers, 1946, 116 Ind.App. 607, 65 N.E.2d 640.

On appeal, when the sufficiency of the evidence is questioned, we do not weigh the evidence, but we examine the record to see if there is any evidence, or any reasonable or logical inference which may be drawn from the evidence, which if believed by the jury would sustain the verdict. Butterfield v. Trittipo, 1879, 67 Ind. 338, 342,Indiana Ins. Co. v. Handlon, 1940, 216 Ind. 442, 24 N.E.2d 1003. The record when considered most favorable to the appellee, and with every reasonable inference against the appellants, discloses that on the 27th day of June, 1946, at about ten o'clock A.M., the appellant, Bernice Gamble, was driving a Chevrolet sedan in a westerly direction on State Road No. 38 in Hamilton County, about two miles west of Noblesville, Indiana. The weather was clear with the sun shining, and the day was warm. State Road No. 38 at that place was hard surfaced with an oil mat which was about thirty feet wide, with berms about fifteen to eighteen feet wide on each side. The appellee was driving a Plymouth sedan in an easterly direction. The rear door on the left side became partially unlatched, and without stopping, he directed his attention to closing this door, and in doing so, his car was driven eighteen inches to two feet to the north and his left of the center of the pavement. He looked up and saw the appellant Bernice Gamble, hereafter referred to as the appellant driver, approaching at about one hundred yards away, driving on her right. Appellee testified he was driving forty to forty-five miles per hour and the oncoming Chevrolet was coming the same speed, but admitted she might have been coming twenty-five miles per hour, which was the opinion of the appellant driver as to her speed. Appellee turned to the right, applied his brakes, which showed skid marks for twenty-five to thirty feet before the point of collision, but he traveled one hundred fifty to two hundred feet from the time he saw the oncoming car until the collision. Appellant driver became confused, and drove to her left and the south side of the road, where the cars collided at the south edge of the pavement, where the appellee's car was partly on the pavement and partly on the berm. Both cars turned to the south at about the same time. As we view the evidence on speed most favorably to the appellee, with his speed at forty miles per hour, and the appellant driver going twenty-five miles per hour, at the time appellee observed the oncoming Chevrolet the cars were approaching each other at a rate of 95.33 feet per second.

By the verdict, the jury found that the appellee was free from any negligence, however slight, which was a proximate cause of the collision. The appellants

[85 N.E.2d 633]

contend that this finding was not sustained by sufficient evidence and was contrary to law. If the facts are in dispute, or if reasonable men may draw different conclusions from undisputed facts, the question of negligence is one for the jury; but if the facts are not in dispute, or if the facts most favorable to the proponent, together with all reasonable and logical inference that may be drawn therefrom be assumed as true, and reasonable men could draw only one inference from such assumed facts and inferences, then the question of negligence becomes one of law for the court. Tabor v. Continental Baking Co., 1941, 110 Ind.App. 633, 641, 38 N.E.2d 257;Baltimore & Ohio R. Co. v. Reyher, Adm'x, 1939, 216 Ind. 545, 24 N.E.2d 284;Indianapolis & Cincinnati Traction Co. v. Roach, 1922, 192 Ind. 384, 135 N.E. 334; Indiana Ins. Co. v. Handlon, 1940, 216 Ind. 442, 24 N.E.2d 1003;Northwestern Transit, Inc., v. Wagner, 1945, 223 Ind. 447, 61 N.E.2d 591;Dieckman, v. Louisville & S. I. Traction Co., 1909, 46 Ind.App. 11, 89 N.E. 909,91 N.E. 179; 45 C.J. 1280, § 852; 5 Am.Jur. 874, § 668.

Likewise, the question of proximate cause is generally a question for the jury to determine, but it may become a question of law for the court under the same circumstances that negligence becomes a question of law. Tabor v. Continental Baking Co., 1941, 110 Ind.App. 633, 644, 38 N.E.2d 257, supra; Anti-Mite Engineering Co. v. Peerman, 1943, 113 Ind.App. 280, 286, 46 N.E.2d 262;Cleveland, C., C. & St. L. R. Co. v. Powers, 1909, 173 Ind. 105, 88 N.E. 1073,89 N.E. 485;Haskell & Barker Car Co. v. Przezdziankowski, 1908, 170 Ind. 1, 15, 83 N.E. 626, 14...

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