Gergely v. Moore
| Decision Date | 30 June 1954 |
| Docket Number | No. 18433,18433 |
| Citation | 125 Ind.App. 263,120 N.E.2d 637 |
| Parties | GERGELY v. MOORE et al. |
| Court | Indiana Appellate Court |
George Cohan, Gary, Jay E. Darlington, Hammond, for appellant.
Jos. L. Skozen, Hammond, Stump & Emswiller, Indianapolis, for appellee.
This is an action for personal injury arising out of an automobile collision. The collision occurred on U. S. Highway 41, which is a four-lane highway running north and south. The point of collision was a short distance south of the intersection of U. S. 41 with U. S. Highway 6. Appellant (Gergely) was riding in an automobile driven by her husband. Immediately prior to the collision the Gergely car was traveling north on the left side of the east half of the highway next to the yellow line at the center of the highway. Appellee (Wade) was also driving his automobile north on said highway a short distance to the right and rear of the Gergely car.
Other material facts regarding the collision were as follows: At the same time, defendant Moore was traveling south behind two other automobiles which were abreast of each other on the west half of U. S. 41, all approaching the automobile occupied by the appellant. Immediately prior to the collision, Moore, in an attempt to pass the two other automobiles, suddenly 'darted' over upon the east half of said U. S. 41 directly into the path of the automobile occupied by the appellant. The Moore and Wade cars, traveling in opposite directions, collided with the Gergely car almost instantaneously. The evidence as to the speed of both the Wade and Gergely cars and the position of the Wade car upon the east half of the highway was in dispute.
The defendant Moore defaulted.
This appeal is from a verdict and judgment in favor of the defendant-appellee Wade.
The errors assigned in appellant's motion for new trial and relied upon by the appellant as grounds for this appeal are the giving of defendant-appellee Wade's instructions numbered 2, 5 and 13, and a false statement made by one of the jurors on voir dire. Instructions 2 and 5 were mandatory instructions on the subject of contributory negligence. Appellant objected to these instructions on the ground that there was no evidence of negligence on the part of appellant.
The rule is now well established that although a passenger is riding as a guest of the operator of a motor vehicle, such guest is nevertheless required to use that degree of care for his own safety that an ordinarily prudent person in like circumstances would use under the same or similar conditions. Keeshin Motor Express Co. v. Glassman, 1942, 219 Ind. 538, 38 N.E.2d 847; Lindley v. Sink, 1940, 218 Ind. 1, 30 N.E.2d 456; Davis v. Dondanville, 1940, 107 Ind.App. 665, 26 N.E.2d 568; Ohio Elec. Co. v. Evans, 1922, 77 Ind.App. 669, 134 N.E. 519.
It is appellee's contention that the facts in evidence raise an inference that appellant saw or in the exercise of reasonable diligence should have seen the Moore car drive over upon the left side of the highway in the path of their car and warned her husband of the hazard involved. Appellee contends that appellant's failure to so warn her husband raised an inference of negligence on her part sufficient to sustain the instructions objected to.
In order to charge appellant with a duty of giving a warning to her husband, the burden was upon appellee to establish (1) either that Mr. Gergely was not already aware of the hazardous circumstances involved or (2) that he, being aware of such hazardous circumstances, negligently operated the automobile with respect thereto for a sufficient period of time that (a) his negligent operation became apparent to appellant and (b) that she thereafter had an opportunity to remonstrate to him regarding his negligent conduct.
In the case before us the evidence is conclusive that Mr. Gergely was fully aware of the hazard as it developed. It is also conclusive that the collision happened so 'suddenly' thereafter that the appellant had no opportunity either to contemplate her husband's conduct with respect...
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Stull v. Davidson
...v. Dondanville, 1940, 107 Ind.App. 665, 26 N.E.2d 568; Ohio Elec. Co. v. Evans, 1922, 77 Ind.App. 669, 134 N.E. 519; Gergely v. Moore, 1954, Ind.App., 120 N.E.2d 637. Appellant predicates error on the refusal of the trial court to give her tendered instruction No. 21, which instruction, in ......
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...warning since she believed that Chambers, the driver of the car, was exercising the appropriate care. See Gergley v. Moore, 125 Ind.App. 263, 265, 120 N.E.2d 637, 638 (1954). ...
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Mays v. Dealers Transit, Inc., 18103.
...whether the jury denied recovery because of this purported issue or because of other issues. For example, see Gergely v. Moore, 125 Ind.App. 263, 120 N.E.2d 637 (1954). If this were an a priori matter, some argument could be conceived against the validity of such a result. If there is absol......
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...any evidence is prejudicial and cause 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' mot......