Garr v. Blissmer, 19270

• Decision Date: 26 October 1961
• Docket Number: No. 2,No. 19270,19270,2
• Citation: 177 N.E.2d 913,132 Ind.App. 635
• Parties: Louis J. GARR, Appellant, v. James A. BLISSMER, Allen Blissmer and Dock Ward, Appellees
• Court: Indiana Appellate Court

Page 913

177 N.E.2d 913

132 Ind.App. 635

Louis J. GARR, Appellant, v. James A. BLISSMER, Allen Blissmer and Dock Ward, Appellees.

No. 19270.

Appellate Court of Indiana, Division No. 2.

Oct. 26, 1961.

Rehearing Denied Dec. 8, 1961.

Owen W. Crumpacker, Harold Abrahamson, Theodore M. Gemberling, Lowell E. Enslen, George V. Burbach, Crumpacker, Gemberling & Enslen, Hammond, for appellant.

Edmond J. Leeney, William J. O'Connor, Galvin, Galvin & Leeney, Eugene D. Tyler, Hammond, for appellees.

BIERLY, Judge.

This action was commenced originally by appellee, James A. Blissmer, a minor, by his next friend, allen Blissmer, filing his complaint on February 29, 1956, against appellant, Louis J. Garr, in the Lake Superior Court, Room No. 5, in Lake County. Appellant filed an amended cross-complaint against appellee, James A. Blissmer, and also joined as cross-defendants, appellees, Allen Blissmer and Dock Ward. After personal jurisdiction attached with reference to all three appellees, an answer on the merits was filed, and the cause separately re-docketed on the issues formed by the amended cross-complaint and the answer of the three appellees, James A. Blissmer, Allen Blissmer and Dock Ward. The cause was tried without reference to the issues originally formed before the case was redocketed.

On February 24, 1958, the cause was submitted to a jury, and, at the close of appellant's evidence, the Court on appellees' motion directed a verdict in their favor. Judgment was rendered on the verdict. Appellant filed a motion for a new trial which was overruled, and this appeal followed. The grounds of error specified in the motion for a new trial are that the said verdict is not sustained by sufficient evidence, that it is contrary to law, and that the Court erred in granting appellees' motion for a directed verdict.

On the 25th day of December, 1954, the appellant (plaintiff below), Louis J. Garr, was injured when the automobile which he was operating collided with an automobile owned by appellee, Dock Ward, but driven by appellee, James A. Blissmer.

The evidence shows that appellant, after visiting with his family, at or around six o'clock in the evening drove his automobile, in which there were six passengers and a dog, west on 175th Street to the intersection of 175th Street and Indianapolis Boulevard in the City of Hammond, Lake County, Indiana, and, heeding a stop sign brought his automobile to stop. At this point of the aforesaid intersection, Indianapolis Boulevard is a divided highway with a grass area parkway fifty feet wide separating a north bound lane from the south bound lane. Appellant turned left and proceeded south in the right hand lane of the north bound traffic lanes of Indianapolis Boulevard. The record discloses that appellant's headlights were burning and that neither ice nor snow was on the ground. It was dark and no lights were evident or burning at the intersection. No stars or moon were visible. Proceeding in the wrong lane of traffic, appellant observed the lights of two cars, one behind the other, approaching him at his left. Suddenly, the car driven by appellee, James Blissmer, swerved out from behind the car it was following and struck appellant's car head on. The collision occurred at a point on Indianapolis Boulevard, some six hundred to nine hundred feet south of said intersection with 175th Street. As a result of the collision, appellant was severely injured and taken to a hospital where he remained for three months for treatment.

The trial court, as heretofore stated, at the close of plaintiff's-appellant's evidence, sustained appellees' motion for a directed verdict for each defendant. The pertinent part of the court's instruction to the jury, after sustaining said motion is that:

'* * * the Court having given it due consideration, has come to the conclusion that there is not sufficient evidence to submit to the jury of the negligence of the defendant, or, in other words, the evidence in the mind of the Court indicates that the plaintiff, himself, was guilty of such negligence as to preclude a recovery as a matter of law; for that reason the Court has sustained the defendants' motion for a directed verdict, * * *.' (Our emphasis).

In considering error in sustaining a motion for a directed verdict, we accept as true all facts unfavorable to the moving party which the evidence tends to prove and all inferences reasonably deductible therefrom. Ax v. Schloot, 1946, 116 Ind.App. 366, 369, 64 N.E.2d 668.

In the case of Whitaker, Admr. v. Borntrager, 1954, 233 Ind. 678, 122 N.E.2d 734, wherein an appeal was perfected challenging the sustaining of a motion for peremptory instruction in favor of the defendant, at the close of plaintiff's evidence, the court gave this answer when a trial court may properly give a jury a peremptory instruction to find for the defendant:

'When there is a total absence of evidence or legitimate inference in favor of the plaintiff upon an essential issue; or where the evidence is without conflict and is susceptible of but one inference and that inference is in favor of the defendant. Jackson Hill Coal and Coke Co. v. Bales et al. (1915), 183 Ind. 276, 279, 108 N.E. 962. Slinkard v. Babb (1953), 125 Ind.App. , , 112 N.E.2d 876, 878 , and cases there cited. Gregory v. The C.C.C. and I.R.R. Co., 112 Ind. 385, 388, 14 N.E. 228.

'* * * the court will not weigh the conflicting evidence or inferences but will consider only the evidence and inferences that are most favorable to the party against whom the motion for a peremptory verdict is directed. Jackson Hill Coal and Coke Co. v. Bales et al. (1915), 183 Ind. 276, 280 , supra; American Food Co. v. Halstead (1905), 165 Ind. 633, 638, 76 N.E. 251. See also Heath v. Sheetz (1905), 164 Ind. 665, 667, 74 N.E. 505. Slinkard v. Babb (1953), 125 Ind.App. , , 112 N.E.2d 876, 878 , supra, and cases there cited.

'In determining whether a peremptory instruction should be given the court must accept as true all facts which the evidence tends to prove and draw, against the party requesting such instruction, all inferences which the jury might reasonably draw, Orey v. Mutual Life Insurance Company of New York (1939), 215 Ind. 305, 306, 19 N.E.2d 547; Holtz v. Elgin, etc., Ry. Co. (1951), 212 Ind.App. 175, 98 N.E.2d 245; Chacker v. Marcus (1949), 119 Ind.App. 672, 674, 86 N.E.2d 708, 89 N.E.2d 455; Balzer v. Waring (1911), 176 Ind. 585, 594, 95 N.E. 257, 48 L.R.A., N.S., 834.'

In a recent case, Huttinger v. G. C. Murphy Company, Ind.App.1961, 172 N.E.2d 74, relative to the giving of peremptory instructions to the jury, we gave approval to the compelling rule cited in Whitaker, supra.

28 West's Indiana Law Encyclopedia Trial § 136, pages 131 and 132, clearly states when a verdict may properly be directed in favor of the defendant in these succinct words:

'The court may properly direct a verdict for defendant where the evidence introduced by plaintiff wholly fails to establish any cause of action in his favor under the issues, where the testimony affords no basis for a recovery in favor of the plaintiff, or where the evidence most favorable to the plaintiff, together with all reasonable inferences which a jury might draw therefrom, is insufficient to establish one or more of the facts essential to plaintiff's right of action, or insufficient to sustain a verdict in his favor.' (Citations omitted).

On the other hand, 28 West's Indiana Law Encyclopedia Trial § 137, pages 133, 134 and 135, states the rule when it is improper for the court to direct a peremptory instruction for the defendant as follows:

'A court should not give a peremptory instruction for the defendant unless there is a total absence of evidence or reasonable inference on at least one essential element of the plaintiff's case, or unless there is no conflict in the evidence and it is susceptible of but one inference which precludes recovery. It is only when the plaintiff fails to make a case, so that it would be the duty of the trial court, or of a higher court on appeal, to set aside the verdict as not being supported by any competent evidence on some material point, that a verdict for the defendant should be directed.

'Where there is some or any evidence which with all its reasonable inference and intendment fairly tends to prove the plaintiff's case, a peremptory instruction in favor of the defendant should not be given. The court cannot give a peremptory instruction for the defendant where there is some competent evidence to sustain a verdict for the plaintiff.

'It is improper for the court to instruct the jury to return a verdict for the defendant when the facts established by the evidence are such that to warrant such conclusion by the court, the court would have to weigh the evidence or judge as to the credibility of the witnesses.' (Citations omitted).

Appellant introduced evidence of negligence on the part of the appellee, and we must determine whether such evidence was sufficient to submit to the jury the issue whether or not the appellee, Blissmer, was guilty of negligence.

The Supreme Court, in the case of Elder, Receiver v. Rutledge, Admx., 1940, 217 Ind. 459, 464, 27 N.E.2d 358, 360, stated the rule of law relative to actionable negligence in these words:

'The theory and essential ingredients of actionable negligence are tersely stated in Faris v. Hoberg, 1893, 134 Ind. 269, 274, 275, 33 N.E. 1028, 1029, 39 Am.St.Rep. 261, as follows:

"In every case involving actionable negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) A failure by the defendant to perform that duty; and (3) An injury to the plaintiff from such failure of the defendant.

"When these elements are brought together, they unitedly constitute actionable negligence. The absence of any one of these elements renders a complaint bad...