Hancock Truck Lines v. Butcher, 28725

• Decision Date: 24 October 1950
• Docket Number: No. 28725,28725
• Parties: HANCOCK TRUCK LINES, Inc. v. BUTCHER.
• Court: Indiana Supreme Court

Page 537

94 N.E.2d 537

229 Ind. 36

HANCOCK TRUCK LINES, Inc. v. BUTCHER.

No. 28725.

Supreme Court of Indiana.

Oct. 24, 1950.

Robert D. Markel, Wilbur S. Furlow and Clifton L. Markel, all of Evansville, Charles Ashley, Boonville, for appellant.

Leonard Ashley, Boonville, Wm. L. Mitchell, Evansville, Paul F. Mason, Rockport, for appellee.

EMMERT, Chief Justice.

This is an appeal from a judgment on a verdict for the appellee who was the defendant and counter-claimant in the trial court. The only error assigned here which has not been waived is the overruling of appellant's motion for a new trial, which stated as causes therefor, that the verdict was not sustained by sufficient evidence and was contrary to law, and errors in excluding certain testimony, in the giving of certain instructions, and in refusing certain of appellant's requested instructions.

Appellant's amended complaint was for property damages to one of its trucks involved in a collision with an automobile being driven by appellee on state road No. 57 about ten miles north of Evansville the morning of November 17, 1943, at about 5:30 o'clock. It charged the truck was being driven southward by Harold Farley on the west half of the highway, and that the collision was caused by appellee's negligence in (1) failing to yield one-half of the highway, (2) failing to keep a reasonable lookout, (3) driving into the west lane of the highway, and (4) operating said automobile when she was sleepy and dozing. Appellee's answer in two paragraphs denied the allegations of the complaint and charged the collision was caused by the contributory negligence of appellant's driver Harold Farley.

Appellee's counter-claim for personal injuries charged the collision was caused by the negligence of appellant's driver in (1) driving at a speed of 50 to 55 miles per hour, (2) failing to keep a lookout ahead, (3) failing to yield one-half of the highway to appellee's approaching car, and (4) driving when sleepy and dozing. Appellant's answer to the counter-claim, in general, denied the charges of negligence, and further charged that the collision was caused by the contributory negligence of appellee, the acts being stated substantially in the language used in the complaint to charge negligence.

The evidence is in conflict as to how and on what side of the highway the collision occurred. The photographs and the testimony as to the debris and marks on the highway do not conclusively establish appellee failed to yield one-half the highway, or that the impact was on the west half of the highway which ran in a general north and south direction. From the manner in which the vehicles came to rest on the east section of the roadway and berm, and from the photographs showing the place of the collision and the damage to the wrecked vehicles, the jury had the right to infer that appellant's tractor trailer truck hit appellee's automobile on the east side of the highway. The jury had the right to find that the testimony of the truck driver as to how and when the vehicles came together was discredited by his cross-examination, and that appellee's testimony was sufficient to warrant a recovery. The verdict was sustained by sufficient evidence and was not contrary to law.

The appellant asserts that the trial court committed error in striking out certain testimony of the witness Walter R. Brown, who with his son, Charles R. Brown, was driving a truck behind appellee for about ten miles the morning of the collision. It is appellant's contention that appellee, who was a housewife for her husband and three children, was unaccustomed to working at night in an airplane factory, and drove her car when sleepy or dozing, which caused her to permit her automobile to go to the west side of the highway in front of appellant's truck. The burden on this issue was upon appellant. Appellee, who was 45 years of age, had worked two nights at the Republic Aviation factory north of Evansville. She began work at 6:00 P.M. and quit at 5:00 A.M. with an hour off for lunch. Upon cross-examination she stated that after she got off work the first night she was not too sleepy, went home and did the dishes and went to bed, and when she laid down she went to sleep. Her daughter, who was 13 years old, went to school, and the men of the household waited on themselves during the day. When she quit work the next morning the weather was chilly and clear, and frost was on the windshield of her automobile, which she cleaned off with hot water obtained from the plant. She drive with a window down in order to keep the wind-shield from frosting. She heard the roar of the truck as she observed it coming around a curve a quarter of a mile north of the place of collision, and she saw the truck come right toward her, but that she did not have time to do anything. There was a gradual rise in the road south of the scene of the collision, which reached its crest in about a quarter of a mile. Appellant's truck driver testified that appellee's car suddenly came on his side of the road. There was no testimony that any witness saw appellee in the car act as if she were dozing or asleep. The court first permitted the truck driver Brown to testify that twice during the time he was following appellee's car, which was 300 to 400 feet in front of him, appellee's car went to her left and across the center line of the highway, the last time being just before she drove over the hill south of the scene of the collision. Brown stated his truck was not equipped with sealed beam lights, and they were not 'any too good.' The trial court then reversed its ruling on the objection to this testimony and instructed the jury to disregard the testimony of the witness as to what happened as to appellee's car being across the center of the highway before arriving at the scene of the collision.

There is no precise standard for determining the relevancy of offered evidence, and such questions must be determined by the facts in each case. Feichter v. Swift, 1921, 77 Ind.App. 427, 132 N.E. 662. If, in the light of general experience the offered testimony logically tends to prove some issue or fact material to the controversy, the evidence is relevant. 2 Jones, Evidence (2d Ed.) § 589; 1 Wigmore, Evidence (3rd Ed.) § 32, p. 421. In the absence of other evidence tending to establish that the appellee was sleepy or dozing at the time she was driving her car home, we are unable to see how testimony that she drove her car to the left of the center of the highway twice in ten miles when no other vehicles were approaching or passing her had any probative value to establish that she was sleepy or dozing at the place of the collision.

The trial court gave a total of 27 instructions to the jury, which included seven given by the court on its own motion, five requested by appellee, and fifteen requested...