Gibson v. Johnson

• Decision Date: 18 April 1938
• Docket Number: 15644.
• Parties: GIBSON v. JOHNSON et al.
• Court: Indiana Appellate Court

14 N.E.2d 337

106 Ind.App. 103

GIBSON v. JOHNSON et al.

No. 15644.

Appellate Court of Indiana, in Banc.

April 18, 1938

Bernard Stroyman, of Indianapolis, and Robt. G. Miller, of Bloomington, for appellant.

George W. Henley and Alfred Evens, both of Bloomington, for appellees.

KIME Judge.

This was an action by the appellant seeking to recover damages for injuries alleged to have been sustained by her as a result of a collision between the automobile which she was driving and a truck driven by the appellee Perry while acting within the scope of his employment as an employee of certain of the appellees.

The complaint was in one paragraph, which was answered by general denial. The cause was tried to a jury who, upon instruction returned a verdict for the Hobbs & Johnson Orchard Company, and they also returned a general verdict in favor of the other appellees. The judgment followed the verdict.

The appellant's motion for new trial was overruled, and this appeal followed; the error assigned being the overruling of said motion. The grounds of the motion for new trial discussed in the brief are that the verdict of the jury is contrary to law; that it is not sustained by sufficient evidence; and error of the court in giving certain instructions.

From the evidence most favorable to the appellee it appears that the appellant was married in 1928 at fifteen years of age and that in 1929 she became pregnant and miscarriage followed. That she was in 1933, while for the second time pregnant (approximately three months), driving an automobile North on Central avenue in the city of Indianapolis; that her mother and two sisters were passengers in the automobile that somewhere between Thirty-Third and Thirty-Fourth streets on Central avenue the appellees' truck was parked parallel to the curb while the driver Perry had been delivering fruit to a customer; that the delivery had been completed, and, as he proceeded to drive the truck from the curb, he looked into the rear view mirror on the left-hand side of the front portion of his truck and did not see an automobile approaching from the south; that he turned the wheels of the truck to the left and started the truck in motion, and when he had proceeded one foot to the left the automobile which appellant was driving passed him and the left front bumper of the truck caught the right rear fender of the appellant's automobile and damaged it slightly, the evidence being that it cost only $3 to repair the fender.

That at the time of the collision the appellant and her mother and sisters were on their way to the State Fair Grounds to visit an exhibition, and that following the accident they proceeded to the fair grounds and appellant's two sisters did visit the exhibit, but that appellant and her mother remained in the automobile for one-half hour while the sisters were at the exhibition, following which the sisters returned to the appellant's automobile and all started home, a distance of a few miles. The appellant did the driving, and following her return home she was not confined to her bed, but was up and...