H.E. McGonigal, Inc. v. Etherington
| Decision Date | 09 June 1948 |
| Docket Number | 17650. |
| Citation | 79 N.E.2d 777,118 Ind.App. 622 |
| Parties | H. E. McGONIGAL, Inc. v. ETHERINGTON. |
| Court | Indiana Appellate Court |
Appeal from Grant Circuit Court; Burr Glenn, Special Judge.
Action by Ralph Etherington against H. E. McGonigal, Incorporated to recover for personal injuries and property damage as result of a collision between a truck driven by plaintiff and an automobile driven by defendant's employee. From a judgment in favor of plaintiff, the defendant appeals.
Judgment affirmed.
Christian & Waltz, of Noblesville, McClure & Shenk, of Kokomo, and Campbell, Gemmil, Browne & Ewer, of Marion, for appellant.
Murray Mannon, Fairchild & Stewart, of Indianapolis, for appellees.
This is an appeal from a judgment in an action for damages upon a complaint in two paragraphs seeking a recovery for alleged personal injuries and property damage respectively. Issues were joined by an answer in denial filed to each paragraph of the complaint. The cause was tried to a jury, and the jury returned a verdict of $25,000 damages upon the first paragraph of the complaint for personal injuries, and $700 upon the second paragraph of the complaint for property damage. The court ordered a remittitur of $7,500, and the judgment of the court upon the verdict was that the appellee should have and recover from the appellant the sum of $17,500 damages on the first paragraph of complaint, and $700 on the second paragraph of the complaint. The appellant filed a motion for a new trial which was overruled, and this appeal followed.
Error assigned for reversal is the action of the court in overruling appellant's motion for a new trial. The specifications in the motion for a new trial question the action of the trial court in giving and refusing to give certain instructions, and asserts that the damages were excessive; and that the verdict of the jury is not sustained by sufficient evidence and is contrary to law.
The specifications in appellant's motion for a new trial, not waived, and discussed in appellant's brief under propositions, points, and authorities, are specifications 1 to 9 inclusive and specification 14.
Specifications 1, 2, 3, 6, 7, and 8 of appellant's motion for a new trial present substantially the same questions as to whether there was any negligence on the part of appellant, and whether appellee was guilty of contributory negligence as a matter of law.
There is evidence in the record from which the jury could have found the following facts: One Eugene Coffman, who was employed as a mechanic by appellant, in such employment, was giving a 1941 Buick Sedan a 2,000-mile check-up and road test. He had driven this automobile west of the City of Kokomo, and was returning driving this car in an eastwardly direction outside the corporate limits of the city on the Jefferson Street road toward an intersection where the Alto road running north and south crossed the Jefferson Street road. Neither road was a preferential highway, nor marked with stop signs. The appellee was driving a Dodge 1 1/2 ton truck southward on the Alto road toward the intersection. The appellee who was driving approximately 25 miles per hour slowed his truck down as he approached the intersection. Appellee entered the intersection ahead of the Buick Sedan being driven by appellant's driver. The appellant's driver looked to the right which was to the south and when he looked back the truck was in front of him in the intersection, and there was a collision between the two vehicles. The points of impact were the left front fender of appellant's Buick Sedan which struck the right side of appellee's truck at the rear of the front fender. The force of the impact threw the Dodge truck 10 to 12 feet in the air, stopping its movement southwardly and knocking such truck 35 to 50 feet eastwardly. Appellee's truck came to rest upside down. The main bed of the truck was on the pavement about 50 feet from where it was struck. The end gate off the truck was thrown by the force of the collision 100 feet from the intersection and it was broken in many pieces. After striking appellee's truck, the Buick Sedan driven by appellant's driver ran into the fence at the southeast corner of the intersection where it broke off a 12-inch cedar post and two 8-inch cedar pole braces set in concrete. The only direct evidence of the speed of the Buick Sedan was that it was traveling 40 miles per hour at the time of the collision.
The appellant contends that there is no evidence which would show appellant's driver to be guilty of any negligence. That appellant's driver was driving east on a paved highway at a speed not greater than 40 miles per hour. That appellant's driver was approaching the intersection from appellee's right which compelled appellee to yield the right-of-way to appellant's driver. That by looking to his own right immediately prior to the collision he was not negligent, and that appellant's driver had the right to presume that appellee would yield the right-of-way. The appellant, also insists, that appellee, by entering into this intersection ahead of appellant's car, under the circumstances, was guilty of contributory negligence as a matter of law. That appellee was bound to foresee the disastrous result of proceeding upon the intersection under the circumstances then existing.
One of the premises of appellant's contention, that its driver was not guilty of contributory negligence, was that two witnesses who testified as to the speed of appellant's car stated it was traveling but 40 miles per hour at the time of the collision. The jury, however, had the right to infer that such testimony was refuted by the physical facts and circumstances of this collision, when the witnesses admitted that the force of the impact threw the heavy Dodge truck up into the air some 10 or 12 feet. There were other physical facts and circumstances shown by the evidence and set out in this opinion in the statement of facts, from which the jury could have properly found that appellant's driver was driving at a dangerous and excessive rate of speed at the time of the collision sufficient to constitute negligence.
It is well settled that a fact may sometimes be established by circumstantial evidence more firmly than by direct evidence which is conflicting therewith. 32 C.J.S., Evidence, § 1016, p. 1039; Pennsylvania Ice & Coal Co. v. Elischer, 1939, 106 Ind.App. 613, 21 N.E.2d 436.
Where the facts are reasonably susceptible of more than one inference or conclusion, the question of negligence and contributory negligence is for the jury. Johnson v. Wilson, 1937, 211 Ind. 51, 5 N.E.2d 533; Dillon v. Evansville Refining Co., 7 Cir., 1941, 127 F.2d 13; Standard Oil Co. of Indiana v. Thomas, 1938, 105 Ind.App. 610, 13 N.E.2d 336; Lindley v. Skidmore, 1941, 109 Ind.App. 178, 33 N.E.2d 797; Earle v. Porter, 1942, 112 Ind.App. 71, 40 N.E.2d 381; Oliver v. Coffman, 1942, 112 Ind.App. 507, 45 N.E.2d 351; Jones v. Kasper, 1941, 109 Ind.App. 465, 33 N.E.2d 816.
By reason of the circumstantial evidence as found in the physical facts surrounding this collision, one reasonable inference which the jury could properly have drawn, was that appellant's car was being operated at a very excessive rate of speed under such circumstances as would unquestionably make appellant's driver guilty of negligence. This evidence, together with the fact that appellant did not slacken such speed when he approached appellee's vehicle which had already entered the intersection, made the question of the appellant's negligence one for the jury. There was clearly evidence from which the jury could have properly found that if appellant's driver had had his car under control, and had been driving it as a reasonable and prudent man would have driven it under the circumstances, and had properly observed appellee's truck as it entered the intersection, there would have been no collision, and that his failure so to do was the proximate cause of such collision.
We must determine the question raised by appellant's assignment of error whether under the circumstances, appellee was guilty of contributory negligence as a matter of law. The appellant contends that since its driver was approaching the intersection from appellee's right that appellee, by reason of the rule of the road and by statute, was required to yield the right-of-way to appellant's driver. Appellant contends that its driver had a right to presume that appellee would yield the right-of-way.
However, highway rules announced by the courts and statutes enacted by the Legislature defining the rights and conduct of automobiles meeting at a highway intersection are not unyielding under all circumstances, and must be applied in each case in the light of the particular circumstances involved. The fact that a statute or rule of the road gives a motorist a preference does not allow him to abandon reasonable prudence and care for the safety of others, and does not avail himself of such right with complete indifference or regard of the safety of others. Kraning v. Bloxson, Adm'x, 1937, 103 Ind.App. 660, 5 N.E.2d 649, 9 N.E.2d 107; Wolf v. Vehling, 1923, 79 Ind.App. 221, 137 N.E. 713; Standard Oil Co. of Indiana v. Thomas, supra.
The operator of an automobile, upon approaching an intersection, is required to exercise reasonable care under the circumstances, but is not required to wait until all vehicles in sight have passed. Jones v. Kasper, supra.
The jury in the instant case could have drawn a reasonable inference from the circumstantial evidence that appellant's Buick Sedan was being driven at such an excessive and unreasonable rate of speed as to mislead appellee and cause him to enter the intersection upon a belief that by using reasonable care ...
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