Hedgecock v. Orlosky

• Citation: 44 N.E.2d 93,220 Ind. 390
• Decision Date: 13 October 1942
• Docket Number: 27729.
• Parties: HEDGECOCK v. ORLOSKY.
• Court: Supreme Court of Indiana

44 N.E.2d 93

220 Ind. 390

HEDGECOCK v. ORLOSKY.

No. 27729.

Supreme Court of Indiana

October 13, 1942

Appeal from Newton Circuit Court; Geo. F. Sammons, Judge.

Bomberger Peters & Morthland, of Hammond, for appellant.

George E. London and Wildermuth & Force, all of Gary, and Hume L. Sammons, and Parker D. Hancock, all of Kentland, for appellee.

SHAKE Judge.

This is an appeal from a judgment for the appellee in an action for personal injuries charged to have been caused by the appellant's negligent operation of an automobile. The sole error assigned is the overruling of the motion for a new trial, in which it is asserted that the verdict is not sustained by sufficient evidence and that it is contrary to law.

The undisputed evidence and that most favorable to the appellee tend to establish the following facts: The accident occurred about 6:30 P. M., November 9, 1937, on Indianapolis Boulevard in the city of Hammond, which is a heavily traveled thoroughfare consisting of two ways of three traffic lanes each, separated by double streetcar tracks. The appellant was driving north on the west lane of the east way which was next to the tracks. The appellee was in an automobile behind, proceeding in the same direction. The appellant suddenly slowed down and brought her car to a stop without warning about midway between intersecting streets, intending to cross the tracks to an eating place. The appellee applied his brakes, but his car collided with the appellant's.

Immediately after this collision the appellee undertook to back his car under its own power preparatory to driving around the appellant but discovered that his front bumper was interlocked with that on the rear of the appellant's car. He thereupon got out of his car and went to the appellant who was sitting in her car, and remonstrated with her for not having given a signal to indicate that she intended to make a left turn or stop. After a brief conversation between the parties the appellee went to the rear of the appellant's car on the west side for the purpose of disengaging the bumpers, where he learned that the point of contact was on the east side. The appellee then jumped between the cars to the east side. Meanwhile the appellant had alighted and gone to the rear west end of her car. The appellee lifted upon his bumper and both parties pushed, thereby separating the cars about two feet. While they were between the cars, another automobile approached from the south, ran into the appellee's car from the rear, and forced it against the rear of the appellant's car inflicting injuries upon each of the parties to this appeal from which each lost a leg. It is not clear from his testimony whether the appellee went between the cars after they were separated or got himself into that position in his effort to disengage them. The appellant testified that a center guard on the rear bumper of her car was knocked off by the initial impact and that she and the appellee were between the cars looking for it and discussing that matter when the second collision occurred. In this she was corroborated, in part, by another witness to the accident, but the appellee disclaimed any recollection of such an incident. The time between the collisions was estimated to have been from three to five minutes.

The facts recited above constitute evidence of negligence on the part of the appellant. Acts 1925, Ch. 213, § 48, p. 570; Acts 1933, Ch. 90, § 4, p. 653; § 47-525, Burns' 1933; § 11178, Baldwin's 1934 in force at the time of the accident; Lorber v. Peoples Motor Coach Co., 1929, 89 Ind.App. 139, 164 N.E. 859, 172 N.E. 526.

The appellant contends that the act of the appellee in going between the cars constituted an independent, responsible, human agency which broke the chain of causation between the appellant's negligence and the appellee's injury, while the appellee asserts that the appellant's negligence was a substantial factor in producing an injury which was of a class reasonably foreseeable by the appellant. Both parties rely upon principles that are well recognized in the law of negligence. No good purpose would be served by restating these rules. The difficulty is in their application to the facts of the case.

It seems to be recognized that the human impulse of an owner to save his property is such that a prudent effort to accomplish that end is reasonably to be expected by one whose negligence places such property in a situation of peril. 38 Am.Jur., Negligence § 81. 64 A.L.R. 515. So, in the case at bar, we believe that when the appellant negligently caused the appellee's automobile to be interlocked with hers on a heavily traveled thoroughfare she was chargeable with knowledge that the appellee might be expected to take reasonable steps to disengage the vehicles and remove his automobile to a place of comparative safety.

This brings us to the question as to whether, under the facts before us, the appellee was guilty of contributory negligence as a matter of law. In this connection we again quote from 38 American Jurisprudence, Negligence, § 185: 'Of necessity there are in every controversy involving the question of negligence or the absence thereof two parties: the defendant and the person injured, or his representative. Since knowledge of the parties is the test of liability, the question of liability is sometimes resolved in a negligence action as one of comparative knowledge--the...