Harpe v. Beuoy
| Decision Date | 14 April 1966 |
| Docket Number | No. 2,No. 20196,20196,2 |
| Citation | 215 N.E.2d 553,139 Ind.App. 690 |
| Parties | Joan HARPE, Appellant, v. Richard D. BEUOY, Appellee |
| Court | Indiana Appellate Court |
Russell S. Armstrong, Evansville, for appellant.
Ralph P. Zoercher, Tell City, for appellee.
This is an action filed by the appellant-plaintiff against the appellee-defendant to recover damages for personal injuries suffered by the appellant as a result of an automobile collision between the two parties.
The relevant facts as evidenced by the record evidence are that the collision occurred at an intersection in Tell City, Indiana in the early evening of September 8, 1962. The intersection was unmarked as there were no traffic signs on any of the four corners of the intersection. The appellant was approaching the intersection in her automobile from the south on Fifteenth Street in that city. By the appellant's own testimony she admitted she first observed the appellee's automobile about the time she was one hundred feet from the intersection. However, the appellant did not attempt to apply the brakes of her automobile, but instead looked away and the [139 INDAPP 692] next time she observed the appellee's automobile she was only twenty feet from the intersection and unable to avoid the collision. There was no evidence that the appellant ever applied her brakes to avoid the accident. On the contrary the appellant testified that at the time she finally observed the appellee for the second time she accelerated the speed of her automobile.
The appellant's complaint was based on the alleged negligence of the appellee in the operation of his automobile, to-wit: Failing to yield the right of way to the appellant; failing to maintain a proper and adequate lookout; failing to operate his automobile in a manner to avoid colliding with and running into the automobile being driven by the appellant; failing to reduce the speed of his automobile as he approached the intersection; driving at an excessive speed; and finally in failing to sound any warning of his approach.
The appellee's answer admitted the immaterial and denied the material allegations of appellant's complaint. In addition the appellee filed two affirmative paragraphs of answer alleging that the appellant was guilty of contributory negligence; and that the appellant could have and did see the peril of the collision in time to have averted the same and failed to do so.
Trial was by court without the intervention of a jury. The court found for the defendant-appellee and against the plaintiff-appellant; and entered judgment against the plaintiff-appellant.
The sole assignment of error raised in this appeal is the overruling of the appellant's motion for a new trial. Specifically the appellant has urged two general errors.
The first error advanced is that the decision of the trial court is contrary to law in that there is an insufficiency of evidence to sustain the court's decision that the appellant was contributorily negligent; that the undisputed evidence clearly establishes the fact that the appellee was negligent in the operation of his automobile; that as a proximate result of the [139 INDAPP 693] negligence of the appellee, the appellant suffered injuries; that, therefore, the court was in error in rendering its decision for the appellee; and for these reasons it was error to overrule the motion for a new trial.
In answering this contention the only function this Court need perform is to review the record evidence to determine if there is substantial, reliable and probative evidence which will support the decision and judgment of the trial court. This Court is of the opinion that there is ample, substantial evidence of a probative value to support a finding that the appellant was guilty of contributory negligence and, therefore, was denied recovery....
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Humbert v. Smith
...51, 55. An error is harmless if there is sufficient competent evidence to support the trial court's judgment. Harpe v. Beuoy (1966), 139 Ind.App. 690, 694, 215 N.E.2d 553, 556. Our standard of review of the sufficiency of the evidence is well established. We are neither permitted to reweigh......
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...and, in any event, the court's finding of fact was based upon other probative evidence which supports the decision; Harpe v. Beuoy (1966), Ind.App., 215 N.E.2d 553. In Presser v. Shull, supra, this court 'The very fact that the court permitted him (Officer Jarrett) to testify gave weight to......
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...the record that the court's decision was based upon the incompetent evidence, the judgment will be reversed. Harpe v. Beuoy (1966), 139 Ind.App. 690, 694, 215 N.E.2d 553, 556. I would adopt the modified residuum rule in the small claims context. Applying the rule here, the only competent ev......