Harter v. Brindle

• Decision Date: 14 October 1969
• Docket Number: No. 1,No. 568,568,1
• Citation: 145 Ind.App. 411,251 N.E.2d 590,18 Ind.Dec. 677
• Parties: Robert Lee HARTER, Appellant, v. Edwin D. BRINDLE, Appellee. A 91
• Court: Indiana Appellate Court

Page 590

251 N.E.2d 590

145 Ind.App. 411

Robert Lee HARTER, Appellant, v. Edwin D. BRINDLE, Appellee.

No. 568 A 91.

Appellate Court of Indiana, Division No. 1.

Oct. 14, 1969.

William F. McNagny and Robert L. Thompson, Jr., Ft. Wayne, Barrett, Barrett & McNagny, Ft. Wayne, of counsel, for appellant.

Jerrald A. Crowell and Bowman & Crowell, Fort Wayne, for appellee.

CARSON, Judge.

This is an appeal from a judgment of the DeKalb Circuit Court wherein the following issues were present. The plaintiff's complaint alleges that on the date of the accident the plaintiff was driving north on a public highway in the City of Fort Wayne, Indiana, at a point where Sherman Street intersects with another public highway known as West State Street; that the defendant was driving in the same direction and approaching the plaintiff's automobile from the rear; that there was an electric traffic signal at the intersection, and; that it was in operation on the date in question; that as the plaintiff approached the intersection, the signal exhibited a red light to all traffic moving north in the direction in which the plaintiff was driving; that the plaintiff brought his automobile to a stop; that the defendant carelessly and negligently drove his automobile into and against the rear of the plaintiff's automobile by reason of which the plaintiff was thrown against the rear seat, the steering wheel and the left door and suffered severe injury.

As specific acts of negligence, the plaintiff charged the defendant with:

(a) carelessly and negligently failing to keep and maintain a lookout (b) the defendant carelessly and negligently failed to keep and maintain the brakes on his automobile in good working condition

(c) the defendant carelessly and negligently failed to apply his brakes in time to avoid striking plaintiff's automobile

(d) the defendant carelessly and negligently drove his automobile at a dangerous rate of speed in approaching said signal and intersection, to-wit: 20 MPH

(e) the defendant carelessly and negligently failed to slow the speed of his automobile in approaching the plaintiff's automobile.

Plaintiff alleges that by reason of such acts of negligence, the plaintiff was injured and that said injuries were caused by such negligence and concluded with an allegation that the plaintiff had been damaged in the amount of Fifty Thousand ($50,000.00) Dollars, and judgment was demanded in a consistent amount.

To this complaint, the defendant filed an answer in admission and denial under Rule 1--3 of the Rules of the Supreme Court of the State of Indiana.

In that portion of the defendant's answer denying the allegations of the plaintiff's complaint, the defendant denied that the traffic signal was plainly visible; he denied that the signal was red as alleged by the plaintiff but, says that the light was green and that just as the plaintiff was preparing to make a right turn, at the intersection, after he had partially entered the same, the light turned amber and the plaintiff, without warning, applied his brakes and brought his automobile to an abrupt stop without warning to the traffic in his rear.

Upon the issues thus formed by the plaintiff's complaint and the defendant's answer, the cause was submitted to trial by jury. The jury returned a verdict for the plaintiff in the amount of Nine Thousand, Five Hundred ($9,500.00) Dollars, and consistent judgment was entered thereon by the Judge of the DeKalb Circuit Court. The defendant filed a motion for a new trial alleging specifically, four grounds which read as follows:

'1. The verdict of the jury is excessive.

'2. Error in the assessment of the amount of recovery in this, that the amount is too large.

'3. The verdict of the jury is contrary to law.

'4. Error of law occurring at the trial as follows:

'(a) The court erred in refusing to give to the jury at the request of the Defendant each of the written instructions tendered by him and numbered 7 and 12.

'(b) The court erred in giving to the jury, at the request of the Plaintiff, Court's Instruction No. 14; to the giving of which the Defendant duly objected within the proper time by dictating to the Court Reporter his objections to Plaintiff's Instruction No. 8 which was the number given such instruction when served on the Defendant and at the time the Defendant made his objections under Rule 1--7.

'(c) The court erred in overruling the objection of the Defendant to each of the following questions propounded by the Plaintiff during the direct examination of Stanley Levine, a witness called on behalf of the Plaintiff and admitting the answers thereto in evidence which questions objections, answers and the rulings of the court thereof are in the following words:

"Q. Did you ever confer with Mr. Brindle, or did you talk to him:

A. As neighbors talk, yes.

Q. How often would this be?

A. At least once a week. Whenever he and I happened to be there at the same time.

Q. During any of these conversations, did Mr. Brindle complain to you about any physical condition that he might have?

MR. McNAGNY:

We'll object to that on the basis that its hearsay.

THE COURT:

Objection is overruled.

A. Yes, he did.

Q. Do you recall when he complained to you, on how many occasions?

MR. McNAGNY:

Would you show a continuing objection, please.

THE COURT:

Yes, show the objection continued to each question.

A. I would say that I would speak to Mr. Brindle about once a week. As I say, not on a regular basis, whenever he and I would happen to be there at the same time, and I couldn't say with what frequency. We'd pass the time of day by saying 'How are you doing' or something like that, and it was to a question like that that I would get into this conversation as to his physical condition.

Q. And what did he say regarding his physical condition to you?

A. Well, his answer always to my question of 'How are you doing, Ed' would be 'not so good', and he would complain that his back was bothering him, and that he was uncomfortable.'

'Q. Mr. Levine, these conversations that you had regarding these complaints that you just testified to, were there in any professional capacity?

A. No, I've never been employed by Mr. Brindle, or on any relationship other than neighbor--friend--but no, no professional relationship."

The sole assignment of error is the overruling of the motion for a new trial.

We shall consider the specifications enumerated in the appellant's motion for a new trial in the order in which they appear in said motion.

Specification Nos. 1 and 2, require us to consider the evidence and all reasonable inferences that can be derived therefrom, favorable to the appellee. Unless it can be determined from the record that the verdict of the jury, in arriving at the damages assessed is so excessive that we can conclude that the jury was motivated by passion, prejudice, partiality or corruption or considered some improper element, the verdict of the jury will not be disturbed. We do not think that the appellant has demonstrated that the verdict of the jury is so excessive as to meet this test and further, a consideration of the evidence indicates to us that it was adequate to support the verdict of the jury.

Specification No. 3, that the verdict of the jury is contrary to law, requires us to apply the rule stated in Pokraka v. Lummus (1952), 230 Ind. 523, 104 N.E.2d 669; and, Hinds, Executor v. McNair (1956), 235 Ind. 34, 129 N.E.2d 553, wherein our Supreme Court, quoting from Pokraka v. Lummus,supra, said:

'It is only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion, that the decision of the trial court will be set aside on the ground that it is contrary to law.'

In considering all of the evidence and the inferences that may be drawn therefrom, favorable to the...