Harker v. Gruhl

• Decision Date: 15 February 1916
• Docket Number: No. 8987.,8987.
• Citation: 62 Ind.App. 177,111 N.E. 457
• Parties: HARKER v. GRUHL.
• Court: Indiana Appellate Court

62 Ind.App. 177

111 N.E. 457

HARKER

v.GRUHL.

No. 8987.

Appellate Court of Indiana, Division No. 2.

Feb. 15, 1916.

Appeal from Circuit Court, Decatur County; Hugh Wickens, Judge.

Action by Katherine Gruhl against Isaiah Harker. From a judgment for plaintiff, defendant appeals. Affirmed.Donaker & Spaugh, of Columbus, and Tremain & Turner and Bennett & Davidson, all of Greensburg, for appellant. Kollmeyer & Sharpnack, of Columbus, and Osborn & Hamilton, of Greensburg, for appellee.

MORAN, J.

On April 5, 1913, appellee, while attempting to cross Main street in the town of Hope, Ind., was struck by appellant's automobile, and received severe injuries, which she alleges in four paragraphs of complaint were caused by the negligence of appellant, and for which she was awarded damages in the sum of $500.

The jury trying the cause returned with the general verdict answers to 43 interrogatories. The failure of the court to render judgment on the answers to interrogatories is the error relied upon for reversal by appellant. Many of the allegations of negligence charged are common to each paragraph of the complaint. Without attempting to technically state the theory of each paragraph of the complaint, the leading allegations of the first paragraph are that appellant at the time of the injury operated his automobile at a high and dangerous rate of speed in excess of 10 miles per hour in a closely built portion of the town of Hope; the second paragraph alleges that appellee was without warning struck by appellant's automobile, while it was being operated in a negligent manner by an inexperienced operator; the third paragraph alleges that appellee was struck by appellant's automobile while it was being operated in a careless and negligent manner, at a rate of speed such as to endanger life and limb; and, the fourth paragraph alleges that appellant failed to warn appellee of the approach of the automobile, which would have prevented the injury.

By the answers to interrogatories, the jury found, among other things, that between the hours of 9 and 10 o'clock p. m., April 5, 1913, appellee attempted to cross Main street in an easterly direction, which street runs north and south through the town of Hope; at the time she so started to cross appellant was 35 feet to the south of her, and when she reached a point in the street 9 feet from the sidewalk, she was struck by the automobile, which was proceeding to the north. The street was well lighted and the machine was equipped with lights, which shone brightly; that she looked for approaching vehicles before attempting to cross the street, but did not stop from the time she started to cross until she was struck by the automobile; that if she had stopped after leaving the sidewalk, she could have seen the automobile at any point between where she left the sidewalk and where she was struck.

It is very earnestly urged by appellant that the answers to interrogatories disclose that appellee did not exercise that degree of care that a reasonably prudent person would have exercised under the circumstances for her own safety; and that the facts thus found are so inconsistent with the general verdict that both cannot stand.

[1][2] It is well settled by our practice that the scope of the inquiry as to the question presented for consideration is limited to the complaint, answer, the general verdict,and the interrogatories and answers thereto. It is equally as well settled that the general verdict necessarily finds for appellee on all the material issues involved, and that the answers to interrogatories control the general verdict only when the conflict upon the face of the record is such as to be beyond the possibility of being removed by any evidence admissible under the issues in the cause. W. McMillen & Sons v. Hall, 109 N. E. 424;Indianapolis, etc., R. R. Co. v. Lewis, 119 Ind. 218, 21 N. E. 660;Consolidated Stone Co. v. Summitt, 152 Ind. 297, 53 N. E. 235.

The general verdict, among other things finds that appellant was an unexperienced operator, and that at the time of the injury he operated his automobile in a closely built up portion of the town of Hope at a high and dangerous rate of speed, at a rate of 10 miles per hour, and at a rate of speed such as to endanger life and limb and in a careless and negligent manner, without giving any warning to travelers upon the street.

[3] At the time the injury occurred there was a statute (section 10465, Burns' R. S. 1908) which made it unlawful to operate an automobile at a greater rate of speed than 8 miles per hour in the business and closely built up portions of any municipality of this state. It has been held that reckless and careless riding or driving on a much-traveled thoroughfare of a city constitutes actionable negligence. Simons v. Gaynor, 89 Ind. 165;Lauson v. Town of Fond du Lac, 141 Wis. 57, 123 N. W. 629, 25 L. R. A. (N. S.) 40, 135 Am. St. Rep. 30.

The general verdict having established the negligence charged, the question for consideration is: Was appellee guilty of such negligence under the facts specially found as to preclude her from recovering as a matter of law?

[4] Appellant and appellee both were traveling upon the...