Garatoni v. Teegarden

• Decision Date: 02 December 1958
• Docket Number: No. 2,No. 19008,19008,2
• Citation: 154 N.E.2d 379,129 Ind.App. 500
• Parties: Fred J. GARATONI, Appellant, v. Doris M. TEEGARDEN, Appellee. Lawrence H. GARATONI by Fred J. Garatoni, his next friend, Appellant, v. Doris M. TEEGARDEN, Appellee
• Court: Indiana Appellate Court

Page 379

154 N.E.2d 379

129 Ind.App. 500

Fred J. GARATONI, Appellant, v. Doris M. TEEGARDEN, Appellee.

Lawrence H. GARATONI by Fred J. Garatoni, his next friend, Appellant, v. Doris M. TEEGARDEN, Appellee.

No. 19008.

Appellate Court of Indiana, Division No. 2.

Dec. 2, 1958.

Transfer Denied May 14, 1959.

Albert L. Doyle, Mishawaka, Albert B. Chipman, Plymouth, for appellants.

McInerny & Huguenard, South Bend, Stevens & Wampler, Plymouth, for appellee.

PFAFF, Judge.

Two separate actions against appellee were consolidated for trial in the court below and are presented here by consolidated briefs. One action was brought by appellant Lawrence H. Garatoni by his next friend for damages for personal injuries incurred in an accident, and the other action was brought by his father, the appellant Fred J. Garatoni, for damages to property and loss of services of his son as a result of the same accident.

The following statement of facts most favorable to appellee, as set forth in appellee's brief, is accepted by appellants with two exceptions to be noted:

'The involved collision occurred on October 6, 1953, in the intersection of Main and Fourth Streets in Mishawaka, Indiana. Main Street ran North and South and Fourth Street ran East and West. Main Street was the dividing line between the East and West parts of the City. There was no speed sign located in the 100 block of West Fourth Street, but there was a 20 mile per hour speed sign for Eastbound traffic in the 200 block of West Fourth Street.

'There was evidence to support the Jury's finding that the accident occurred in a business district.

'On the day of the collision the appellee, Doris M. Teegarden, lived about two miles south of Mishawaka. She left home about 7:25 or 7:30 a. m. and proceeded on Highway 331 to Fourth Street. On Fourth Street she turned to the left or west and traveled three blocks to the intersection with Main Street, where she intended to make a left hand turn. As she traveled west on Fourth Street until she was approximately half a block from Main Street she was traveling about 20 or 25 miles per hour. Then she slowed down. At approximately 150 feet from Main Street she turned on her automatic turn signals to indicate a left-hand turn. As she entered the intersection with Main Street she was on the north side of Fourth Street near the center line; the electric traffic signal at the intersection showed green for her; and at such time she was traveling at about ten miles per hour. After that she reduced her speed so that immediately before the collision her car was just barely in motion. As she approached the intersection she noted the squad car facing north on Main Street, just south of Fourth Street, waiting for the traffic light to change. She looked ahead but did not see any traffic approaching the intersection on Fourth Street.

'On October 6, 1953, appellant Lawrence H. Garatoni, the son of Appellant Fred Garatoni, was fifteen years of age. He was in possession of a two-wheeled Cushman-Eagle motor scooter. The seat was about three feet above the ground. The father had paid for the motor scooter and received a Certificate of Title in his name about four or five months before the accident. Lawrence had been riding it, with the knowledge and consent of his father, who knew that Lawrence did not have a driver's license. The father had made an effort to get a license for his son but found it was impossible because of his age. He nevertheless still permitted Lawrence to drive the motor scooter.

'After the accident Fred Garatoni heard that Lawrence had been warned a couple of times by Mishawaka policemen about excessive speeding. The Assistant Chief of the Mishawaka Police at the time of the collision was an uncle of Lawrence Garatoni, and a brother-in-law of Fred Garatoni.

'On October 6, 1953, Lawrence picked up Richard Auble on Fourth Street about four or five blocks west of the intersection, and they proceeded east on Fourth Street to the intersection with Main. Lawrence was driving and Richard was on the rear part of the seat. At a point between 75 and 100 feet west of the intersection, Lawrence was traveling at a speed of about 25 miles an hour, and at such point the motor scooter started to pick up a little speed. The motor scooter did not slow down as it approached the intersection and it entered the intersection at a speed of 30 to 40 miles an hour.

'As Miss Teegarden approached the intersection from the east and Lawrence from the west, there was a car ahead of Lawrence stopped in the intersection prior to making a left turn. It was facing in an easterly direction with its left side approximately on the imaginary center line of Fourth Street. It was not quite to the center of Main Street. Lawrence turned out to the right to go around the stopped car. He got just a brief glimpse of the Teegarden automobile. He tried to steer to the right and does not remember too much after that. He did not know whether the Teegarden automobile was moving or stopped. Miss Teegarden first saw the motor scooter when she started to make a left hand turn and the motor scooter was not more than five feet in front of her. She applied her brakes. The front of the Teegarden car and the front of the motor scooter came together. The automobile did not move after the collision.'

Appellants question the statement that there was a car ahead of Lawrence stopped in the intersection facing in an easterly direction but admit that such statement is supported by the testimony of Lawrence himself and we, therefore, accept it.

Appellants further challenge the statement that the accident occurred in the business district. We find that there was evidence from which the jury could have properly concluded that the accident occurred in a business district.

Appellant argues that the verdicts were contrary to law in that the evidence and inferences therefrom most favorable to appellee establish as a matter of law that appellee was guilty of negligence which was the sole proximate cause of the collision. However, in our opinion reasonable men might draw different conclusions from the evidence. There was evidence from which the jury could have found that appellants were guilty of contributory negligence, which was a proximate cause of the collision. Under the evidence here the question of proximate cause was one for the jury. Gamble v. Lewis, 1949, 227 Ind. 455, 85 N.E.2d 629; Phares v. Carr, 1952, 122 Ind.App. 597, 106 N.E.2d 242, 245. In Phares v. Carr, supra, this court said:

'* * * Also, it has been stated that proximate cause is a question for the court only when the facts are plain and undisputable, but if there is some reasonable doubt as to the proximate cause of an injury, it is a question for the jury. See 65 C.J.S. Negligence § 264(a), p. 1187.

'As stated by this court in the case of McIntosh v. Pennsylvania R. Co., 1941, 111 Ind.App. 550, 559, 38 N.E.2d 263, 266:

"'* * * The fundamental test under the doctrine as determined by the decisions of this State, is the test of foreseeability.' We agree with the appellee that under our decisions the fundamental test is the test of foreseeability. In the case of Swanson v. Slagal, Administratrix (1937), 212 Ind. 394, , 8 N.E.2d 993, 1001, the Supreme Court, after analyzing many of the Indiana cases, has this to say: 'As stated above this court has utilized as a practical rule of legal cause the test of foreseeability. The result of the holding in the foregoing cases is that if the wrongful act of the defendant is a substantial factor in producing the injury complained of, and if the particular injury suffered by the plaintiff is one of a class which was reasonably foreseeable at the time of the defendant's misconduct, then there is a causal relation in fact as well as a legal cause. It is the function of the jury to determine whether the defendant's act is a substantial factor in producing the injury of the plaintiff and whether such injury was reasonably foreseeable at the time of the defendant's misconduct.' * * *"

Appellants' tendered Instruction No. 3, which was refused, reads as follows:

'One who operates an automobile on public highway is bound to observe the highway in front of him so as to discover other vehicles or pedestrians thereon and avoid colliding therewith, and to keep his automobile under such control that he may reasonably operate or stop the same to avoid a collision and possible injury to other persons. He is bound to see what he could have seen if he had exercised due care under the circumstances; and if, in this case, you find that the defendant could have seen the plaintiff with whom she collided in time to have so operated her automobile, or to have stopped the same in time to have avoided a collision with the plaintiff, by the exercise of due care and caution required by the particular circumstances, and you also find that she did so collide with the plaintiff, then she was negligent in operating her automobile as to cause such collision, as alleged in the complaint, and if you find plaintiff was not guilty of contributory negligence, your verdict should be for the plaintiff.'

While the giving of a similar instruction was held not to be error in McClure v. Miller, 1951, 229 Ind. 422, 98 N.E.2d 498 in that case it was held to be within the issues and applicable to the evidence. Here there was no allegation of a failure by appellee to keep her automobile under control. The instruction was not applicable to the issues and the evidence and was properly refused. Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, § 1510, p. 51; Koeneman v. Aldridge, 1954, 125 Ind.App. 176, 122 N.E.2d 345; Automobile Underwriters, Inc., v. Smith, 1956, 126 Ind.App. 332, 133 N.E.2d 72; Wylie v. Myers, Ind.1958, 150 N.E.2d 887; Able v. Bane, 1953, 123 Ind.App. 585, 110 N.E.2d 306; Clark v. Rohr, 1953, 123 Ind.App. 209, 109 N.E.2d 727; Chicago & Eastern Illinois Railroad Co. v....