Gerlot v. Swartz
| Decision Date | 28 April 1937 |
| Docket Number | 26761. |
| Citation | 7 N.E.2d 960,212 Ind. 292 |
| Parties | GERLOT et al. v. SWARTZ et al. |
| Court | Indiana Supreme Court |
Appeal from Laporte Circuit Court; Wirt Worden Judge.
Bomberger Peters & Morthland, of Hammond (Alfred H. Highland and Charles G. Bomberger, both of Hammond, of counsel), for appellants.
Howard D. Clark, Bruce B. Loring and Loring & Douglas, all of Valparaiso, for appellee.
This was an action by appellee Douglas A. Swartz against appellants to recover damages for personal injuries resulting from a rear-end automobile collision. The complaint was in three paragraphs. Appellants' demurrer to the first paragraph of amended complaint was overruled and appellants answered by general denial. There was a trial by a jury and a verdict returned in favor of appellee Swartz. Appellants filed a motion for a new trial which was overruled.
Appellee's first paragraph of amended complaint, in substance, alleges that shortly after midnight on the 9th day of January, 1934 plaintiff was riding as a gratuitous passenger in a car owned and operated by Werner Hiltpold, in an easterly direction, on Indiana State Road No. 130, about three-quarters of a mile west of the town limits of Wheeler, Porter county, Ind.; that the highway runs in a northwesterly and southeasterly direction, and for more than a mile, in each direction from the point of the accident, is improved with a cement slab twenty feet in width with a five-foot berme, eighteen inches of which immediately adjoining the concrete is improved with gravel; that at the time there was and had been falling a drizzly rain, the atmosphere was filled with mist, and it was very dark; that some time prior to the accident the defendant Walter Gerlot had driven a truck, called a semitrailer, loaded with freight, along said highway, and was proceeding toward the town of Wheeler. Shortly before the accident occurred he parked the truck on the right side of the highway and to the south of the center line, entirely upon the concrete portion of the road. The body of the truck was seven or eight feet in width, twelve feet in height, and was painted a dark color.
That all times mentioned in the complaint the defendant Walter Gerlot was acting as the driver and agent of the defendant Kain's Motor Service, Inc., and Anthony Kain; that Kain's Motor Service, Inc., was at all times mentioned in the complaint the owner and operator of the truck; that it is a corporation organized under the laws of Illinois.
That at all times mentioned in the complaint the truck was under the control and charge of Gerlot; that Kain's Motor Service, Inc., was on said date a motor or contract carrier for hire, and there was being transported in said truck, for compensation, express and freight, and it was being operated between Chicago, Ill., and Fort Wayne, Ind.; that at the time and place, aforesaid, the defendants carelessly and negligently permitted the truck to remain parked, and carelessly and negligently failed to cause to be displayed, in a permanent position above the surface of the highway, at a distance of approximately three hundred feet to the northwest and to the southeast of where the truck was parked, a brilliant burning danger or caution signal, and a red warning flag.
That at said time and place plaintiff was riding as a gratuitous passenger with Hiltpold. The car was being driven at a speed approximately thirty miles per hour, and because of the negligent acts alleged, the driver of said car came upon said truck parked in the highway; that he did not know the truck was parked by reason of the negligent acts alleged, and that he was unable to turn his car either to the right or to the left, or to stop the same in time to avoid running into the rear of the truck, and did run into the rear of the truck with great force and violence in such a manner that the plaintiff riding in the front seat to the right of the driver was thrown through the windshield and sustained enumerated injuries, to wit: Severely bruised on all parts of his body; great nervous shock; fracture of the skull over the left eye; pressure on the eyeball; impaired sight of left eye; cut on left eyelid, another along the arch of the left eyebrow; numbness in left side of head; roughened bone above the left eye; eye fatigue and constant headaches; cut on the chin filled with broken glass; deep and lasting scars on head, face, and throat; right kneecap torn loose and pushed up along the femur, resulting in a necessary operation; stiff and swollen, any motion reduced to one-half; constant pain in right leg. He will be handicapped in performing his duties as a chemist; salary $6.58 per day; confined to his bed for a period of five weeks; unable to work for eight weeks; employed doctors and nurses; confined in the hospital; $300 doctor bill; $250 hospital and nurses. Prior to the accident was ablebodied, thirty-seven years of age.
The second paragraph is identical with the first except that instead of charging negligence and failure to place flares and lights, the negligence charged was in allowing the truck to remain parked without any lights on the rear end thereof, and without warning or notice in any manner to persons driving automobiles approaching said truck so parked from the west; that said truck was parked on said highway in the manner aforesaid.
The third paragraph of complaint is identical with the first and second except the allegations of negligence, which are that the truck was parked on the highway on the concrete slab thereof, immediately to the south of the center line which was designated by a black line down the center of the highway, and carelessly and negligently permitted the same to remain parked on said highway without a lighted red light on the rear of said truck.
Appellants' demurrer to the first paragraph of complaint was on the ground that said first paragraph of complaint does not state facts sufficient to constitute a cause of action, attaching thereto the following memorandum: 'For a memorandum in support of their separate and several demurrer, the defendants separately and severally say that at the time of the injury complained of by the plaintiff, they were not, nor were either of them under any duty to display a brilliant burning danger or caution signal, and a red warning flag at a distance of approximately three hundred feet to the northwest and to the southeast of where the truck was alleged to be parked; that the statute of the State of Indiana which purports to require the placing of flares to the front and rear of motor trucks stopped on the highway is invalid and unconstitutional.' The overruling of appellants' demurrer to the first paragraph of appellee's amended complaint is the subject of appellants' first point discussed in their brief. They assert that section 47-526, Burns' Ind.St.1933, section 11179, Baldwin's Ind.St.1934, Acts 1933, c. 90, p. 653, § 5, is unconstitutional and void, being in violation of section 23, article 1, of the Constitution of Indiana and of the Fourteenth Amendment to the Constitution of the United States. The above statute is the so-called 'flare statute,' and applies only to motor vehicles used for the carriage of passengers for hire, motortrucks and commercial motor vehicles, and excludes pleasure vehicles. For this reason appellants claim the classification is arbitrary, unreasonable, and capricious and therefore invalid. Appellant points out that the object and purpose of the statute is to warn travelers of the danger and hazard necessarily connected with vehicles stopped on the highway, and argues that the duty is imposed according to the character of the use of the vehicle and not according to the characteristics common to all motor vehicles, in that they all have size and weight which would make any or all of them a dangerous obstruction if parked unlighted on a highway.
A like contention was made in the case of Koplovitz v. Jensen (1926) 197 Ind. 475, 151 N.E. 390, 394, and the court held adversely to appellants' contention. We quote the following from that opinion:
'It is an elementary rule that every presumption will be indulged in favor of the validity of legislative action. The power of the Legislature of this state to pass and promulgate reasonable police regulations has never been denied. It may exercise the police power when necessary and appropriate to promote the health, comfort, safety, and welfare of society, even though such enactments may invade the right of liberty or property of an individual. Bailey v. People [1901] 190 Ill. 28, 60 N.E. 98, 54 L.R.A. 838, 83 Am.St.Rep. 116. The act here in question was designed to secure the safety of travelers upon the public highway. It is public in purpose and applies alike to all persons similarly situated, and is of general application to all members of the same class. The incorporation of these elements into a law resting upon public policy is not subject to the claim of class legislation, that is to say, discrimination against some and favoring others, and is sufficient denial of the claim that it is founded upon an unreasonable basis.
'In Minneapolis, etc., R. Co. v. Beckwith [1889] 129 U.S. 26, 9 S.Ct. 207, 32 L.Ed. 585, in speaking of section 1 of the Fourteenth Amendment, it was said:
'See also, Barbier v. Connolly [1885] 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923; Cooley's Const.Limitations (6th Ed.) pp. 479, 481.
'If it...
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