Gergely v. Moore, 18433
| Decision Date | 28 October 1954 |
| Docket Number | No. 18433,18433 |
| Citation | 122 N.E.2d 142,125 Ind.App. 263 |
| Parties | Marie K. GERGELY, Appellant, v. Goebel MOORE and Wendall Wade, Appellees. |
| Court | Indiana Appellate Court |
George Cohan, Gary, Jay E. Darlington, Hammond, for appellant.
Jos. L. Skozen, Hammond, Stump & Emswiller, Indianapolis, for appellee wade.
In his petition for rehearing, appellee Wade correctly asserts that the court did not discuss the issue as to whether or not appellant Gergely may have been negligent in that she failed to remonstrate to the driver of the car in which she was a guest, because of the fact that for a distance of a half mile he drove upon the inner lane of a 'four-lane highway' in the presence of heavy on-coming traffic while not in the act of passing another vehicle. Appellant relies upon the general rule of the road that the left side of a highway may be used for passing only.
In connection with this issue, appellee contends that this court should take judicial knowledge of the fact that said highway was congested with traffic approaching from the opposite direction at the time of the collision and that because of this condition approaching cars were likely to cross over onto the east side of the highway and that this fact also presented a material question as to whether or not the appellant's host was negligent in driving upon the inner lane of the highway. Appellee contends that these circumstances may have created an obligation for appellant to act for her own safety and that they were sufficient to support the instruction on the issue of contributory negligence on the part of appellant which was given to the jury.
The fact of the density of traffic, as asserted, does not appear from the evidence and we are not permitted to take judicial knowledge thereof. Furthermore, upon the related issue, it has heretofore been determined that a person traveling upon the inside lane of a four-lane highway 'with 'heavy traffic' approaching and passing in the opposite direction * * * had the right to assume that approaching vehicles would stay on their proper side of the center line as the law required.' Lee Brothers v. Jones, 1944, 114 Ind.App. 688, 699, 700, 54 N.E.2d 108, 113.
Furthermore, appellee's contention ignores § 47-2013(b) of Burns' 1952 Replacement, which provides:
Appellee's contention also ignores § 47-2018 and subsection (a) which provides:
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Pardue v. Seven-Up Bottling Co. of Indiana
...for reversal unless it appears from the record that the error was harmless, Gergely v. Moore, (1954) 125 Ind.App. 263, 120 N.E.2d 637 and 122 N.E.2d 142, in that the jury was not misled. Hartman, In ruling on this allegation of error in the Pardues' motion to correct errors, the trial court......
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Kaminski v. Meadows, 12462.
...instruction on contributory negligence was, therefore, reversible error. Gergely v. Moore, 1954, 125 Ind.App. 263, 267, 120 N.E.2d 637, 122 N.E.2d 142, transfer to Supreme Court denied Here the undisputed evidence is that the plaintiff was watching, he saw the defendant's car was not going ......