Helton v. Mann
| Decision Date | 24 March 1942 |
| Docket Number | 16756. |
| Citation | 40 N.E.2d 395,111 Ind.App. 487 |
| Parties | HELTON et al. v. MANN. |
| Court | Indiana Appellate Court |
[Copyrighted Material Omitted]
Claycombe & Stump and Jack Kammins, all of Indianapolis, for appellants.
Seth Ward and Richard Smith, both of Indianapolis, for appellee.
This is an action by appellee (plaintiff below), to recover from appellants for personal injuries alleged to have been sustained as a result of an automobile accident caused by the negligence of Charles Helton while operating an automobile as the agent of Rolla R. Helton.
The complaint alleges that on the first day of November, 1936, at about 2 P. M., plaintiff was an invited guest and was in an automobile driven by her father on Orange Street in the City of Indianapolis, Indiana, and that while said car was being driven across the intersection of Orange Street and Olive Street, and while in said intersection, Charles Helton acting as agent of Rolla R. Helton, negligently operated an automobile and ran the same into said intersection and against the automobile in which plaintiff was riding. It is further alleged that the negligent, careless and unlawful acts on the part of both defendants consisted of:
(1). Negligently failing to keep a proper and sufficient lookout for this plaintiff.
(2). Negligently failing to sound a horn or signal of their approach.
(3). Negligently operating said automobile at a high rate of speed.
(4). Negligently failing to stop said automobile when they saw that a collision was imminent.
(5). Negligently failing to have said automobile under control.
It is further alleged that by reason of the negligence and unlawful act on the part of both defendants, the automobile which they were operating crashed violently into the automobile in which plaintiff was an occupant, and caused plaintiff to be hurled violently against the interior parts of said automobile from which she suffered injuries. It is further alleged that her face was cut and bruised, her front teeth loosened, her right shoulder injured and that she suffered a severe shock to her entire nervous system and that she has been permanently disfigured and injured.
The cause was submitted to a jury for trial and resulted in a verdict for appellee in the sum of $3,400 against appellants and judgment was rendered on the verdict.
The error relied upon for reversal in this court is the overruling of appellant's motion for a new trial. The causes relied upon for a new trial, which are set out in appellant's brief under the heading, "Propositions and Authorities", and not specifically waived are:
(1). The verdict is not sustained by sufficient evidence.
(2). The verdict is contrary to law.
(3). The damages assessed by the jury are excessive.
(4). The court erred in giving to the jury of its own motion instruction 12 and 14.
(5). The court erred in giving to the jury at the request of the plaintiff, instruction no. 4 and in giving to the jury plaintiff's instruction no. 2 as modified by the court.
(6). Specifically waived.
(7). The court erred in overruling a motion to strike out part of an answer of a witness to a question.
(8). The court erred in overruling a motion to instruct the jury to disregard the statement of a witness in answer to a question.
(9). The court erred in overruling a motion to disregard the statement of a witness concerning any other trial.
(10). The court erred in overruling the motion of defendant to withdraw the cause from the jury, for reason of constant references by counsel for defendant to an $800 judgment which he insists he obtained against defendants.
(11). The court erred in the trial of said cause in overruling defendant's motion to withdraw on account of misconduct of counsel for plaintiff.
In considering the sole question as to whether or not the verdict of the jury is sustained by sufficient evidence, we keep in mind the well founded rule of this court that only the evidence most favorable to appellee will be considered. There was evidence submitted by appellee that the driver of the car, in which appellee was riding, before entering the intersection of the streets named in the complaint, stopped his car and looked to see if any one was coming, shifted his gears and passed into the intersection, and that when he passed the center of the intersection, he was struck by the car driven by Charles Helton, and that no warning or signal was given of his approach. There was further evidence that after the impact of appellants' car, the car of appellee was lifted fifty (50) or sixty (60) feet and came in contact with the porch of a residence. The evidence of appellee further discloses that after the accident, appellant, Charles Helton, stated that he did not know how fast he was driving, that it was a new car and that he had it opened up. The evidence further disclosed that in a conversation with Rolla Helton after the accident, that Rolla Helton said to Edgar V. Mann that he realized the boy was negligent and that he felt sorry for the little girl. The boy was driving his car and he was responsible and he had sent him on an errand and he felt that he, Edgar V. Mann, would be taken care of.
We are of the opinion that this evidence, considered alone, is sufficient to warrant a finding for appellee. The alleged statement of Rolla Helton that he was responsible and that he had sent his son on an errand, was in the nature of an admission of liability from which the jury might infer that the son was, at the time of the accident, operating the car either as agent of his father or with his knowledge or consent. Epperson v. Rostatter, 90 Ind.App. 8, 168 N.E. 126.
It is our opinion that from the consideration of the evidence submitted by appellee, the jury was warranted in reaching the conclusion they did so reach and that under the principles of law involved relative to negligence, upon the application of such evidence the verdict of the jury is not contrary to law.
It is next contended that the damages assessed by the jury are excessive. There is evidence establishing the fact that the right collar bone of Doris Eileen Mann was broken; that she had injuries about the face and head which resulted in leaving scars on her face; that she had to wear a brace for two months and that she walks with a stoop and is nervous and temperamental. There was also evidence of pain and suffering. While the amount awarded, $3,400, is a substantial sum, the extent of the injuries as a basis for damages was for the jury to determine in the first instance and in the absence of any improper influence, prejudice, passion, or partiality, this court will not disturb such verdict.
By instruction No. 12 given by the court on its own motion, the jury, among other things, was informed to follow the law as given by the court in the instructions and not as stated by counsel and to take the evidence detailed by the witnesses and shown by the documents introduced instead of statements of counsel. It is contended by appellants that the reference by the court in such instruction to "documents" was erroneous in that it referred to more than one document when, as a matter of fact, only one exhibit was introduced in evidence. We are of the opinion that considering this instruction alone there is no merit in this contention even though the "documents" should have been referred to in a singular number rather than plural. But, having in mind the contention of appellant relative to misconduct of counsel for appellee this instruction becomes significant to which we will refer later herein.
Instruction No. 14, given by the court on its own motion informs the jury relative to the impeachment of witnesses and informed them that if a witness had made statements out of court contrary to and inconsistent with what he or she testified on the trial concerning material matter to the issues and if such witness has been impeached, then it was within the province of the jury to disregard such testimony except as corroborated. It is contended by appellant that this instruction gave emphasis to the statements of the attorney for appellee which were improperly made in the presence of the jury. We do not so consider the effect of this instruction and find no error in the giving thereof.
Instruction No. 4 given by the court on request of plaintiff, informs the jury that in estimating the damages, if any, they could take into consideration every phase of the injury as alleged in the complaint and could consider any future pain and suffering she might endure. Appellant insists that there was no evidence concerning the element of future pain and suffering and consequently such instruction was erroneous. There is evidence tending to show that Doris Eileen Mann, as a result of the accident, is always nervous and that she has headaches all the time. This evidence, we think, would warrant the court in giving this instruction and we find no error by reason thereof.
Instruction No. 2, requested by the plaintiff and given by the court after modifying same, informed the jury relative to negligence. Said instruction contained the following statement:
"Any person that violates a duly enacted statute of the State of Indiana regulating the operation of a motor vehicle is a wrongdoer and is negligent in the eyes of the law and any innocent person injured by such violation of a positive statute regulating the...
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