Hiatt v. Trucking, Inc., 18231

• Decision Date: 28 February 1952
• Docket Number: No. 18231,18231
• Citation: 103 N.E.2d 915,122 Ind.App. 411
• Parties: HIATT v. TRUCKING, Inc. et al.
• Court: Indiana Appellate Court

Page 915

103 N.E.2d 915

122 Ind.App. 411

HIATT v. TRUCKING, Inc. et al.

No. 18231.

Appellate Court of Indiana, in Banc.

Feb. 28, 1952.

Robert L. Smith, Portland, John A. Resler, Portland, John D. Wilson, Winchester, E. Earl Robbins, Centerville, (Keith Fraser, Portland, of counsel), for appellant.

Harlan, Brubaker & Harlan, Richmond, Livengood & Livengood, Richmond, Brown & Edwards, New Castle, Bowen, Mendenhall & Hunter, Winchester (Harlan, Brubaker & Harlan and Russell H. Schussler, all of Richmond, of counsel), for appellees.

MARTIN, Judge.

Appellant brought this action to recover damages for alleged property damage resulting from a collision between a car owned and operated by appellant and a truck owned by Trucking, Incorporated, and Ralph Winters, which truck was being operated by appellee, Charles Rey Hull. The truck driver filed his counter-claim against appellant, alleging damages for personal injuries.

The complaint and counter-claim were put at issue by answers. There was a trial by a jury which resulted in a verdict of $6,000 for personal injuries on appellee Hull's counter-claim. From a judgment on this verdict an appeal was taken.

Appellee's counter-claim alleges in part as follows:

'1. That on May 18, 1944, at about 9:30 o'clock, p. m., this defendant was engaged in the operation of a White tractor-trailer motor truck, going in a westerly direction along and upon U. S. Highway No. 40, a public highway in said county and state, approaching a point in said highway where the same is intersected by Third Street in the town of Centerville, said county and state; that at said time the plaintiff was upon said highway driving and operating his 1937 Ford Tudor Sedan automobile going west and in front of the motor truck so driven by this defendant; that the motor vehicles so driven by the respective parties were being driven at approximately fifteen to eighteen miles per hour; that immediately before the plaintiff reached said intersection, without warning or signal of any kind, he drove his said automobile to the left so that the left wheels were across and south of the middle dividing line of said street at a point and in which position the plaintiff, without warning or signal of any kind, suddenly, negligently, carelessly, unlawfully, abruptly and sharply turned his automobile to the right and in front of and into the path of the said tractor-trailer then being driven by this defendant; the plaintiff then intended to go north on said Third Street from said intersection, although from his manner of driving his automobile it appeared to this defendant, and would appear to any prudent person, that the plaintiff was about to turn south in said intersection and to his left. That the instant this defendant observed plaintiff turning his automobile into the path of defendant's truck this defendant turned to the right in an effort to avoid a collision; that plaintiff then and there ran his automobile into said tractor-trailer of defendant, causing defendant to lose control thereof, which tractor-trailer ran up, against and over the curbing at the north west corner of said intersection striking and breaking off a utility pole there located and causing said tractor-trailer to continue and strike a large tree approximately six feet to the west of said utility pole, all of said acts of collision being continuous in character and all due to the carelessness and negligence of plaintiff as aforesaid.

'2. That as a result of the aforementioned collision between plaintiff's said automobile and said tractor-trailer driven by this defendant said tractor-trailer unit was entirely and completely demolished and the cab portion of said tractor-trailer wrecked in such a manner that this defendant was helplessly pinned in and under said wreckage for a period of approximately forty-five minutes before he could be extricated therefrom.

'3. That as a result of said collision and resulting acts of collision this defendant then and there suffered painful, severe and permanent bodily injuries in that defendant suffered a deep laceration to the arch of his right foot, fractured left femur, severe abdominal blows, and many cuts and bruises of his body.'

The assignment of error questions the court's ruling in overruling appellant's motion for a new trial. The grounds in said motion were: The verdict of the jury is contrary to law; the verdict of the jury is not sustained by sufficient evidence, and, the court erred in admitting evidence over the objection of the plaintiff, in that the witness Lewis Bond, a witness produced by the defendant, Hull, upon the direct examination of the said Lewis Bond, and after he had testified that he was the first person to arrive at the scene of the collision, that other people came up almost instantly; that he learned that the defendant, Hull, was in the cab of the truck. The witness, Bond, was then asked by the counsel for the defendants--'What did he (Hull) say?' to which question counsel for the plaintiff objected as follows, 'I object; it is hearsay evidence and no part of the res gestae', which objection was overruled by the court, and the said Lewis Bond answered as follows, 'He wanted to let his wife and children know and as also he said 'Why did that man turn in front of me.'' Thereupon counsel for the plaintiff moved to strike out the answer, which was also overruled by the court.

On appeal, when the sufficiency of the evidence is questioned, we do not weigh the evidence, but we examine the record to see if there is any evidence, or any reasonable or logical inference which may be drawn from the evidence, which if believed by the jury would sustain the verdict. Kempf v. Himsel, 1951, 121 Ind.App. 488, 98 N.E.2d 200; Gamble v. Lewis, 1949, 227 Ind. 455, 85 N.E.2d 629.

Hull testified in substance as follows: 'Stopped just outside Centerville, relieved myself, checked the tires and lights, and got back in the truck. This was around 9 o'clock and the weather was good; just as I started off a blue sedan passed me and as I proceeded along the highway the car was about 80 to 85 feet ahead of me traveling about 25, maybe 35, miles an hour. Just in Centerville I noticed that car got out to the white line, slowed up and that closed the distance between us, then he came to the middle of the road again, that is on our half, and then he went back out again, and I thought--well, maybe, he is going to stay out there and I got out next to the outer edge, as close as I possibly could and he came back again; that was after we came up to Fourth Street. I wasn't too far behind him at Fourth Street and at that time this car was going 15 to 20, maybe 22 miles. When he was in the middle of the block between Fourth and Third Streets he pulled out to the middle, or next to the white line again and slowed up more, and I naturally thought he was going you know to make a left-hand turn, that is the proper way to go, is to the middle of the road, the road was clear, there were no cars parked next to the curb, so I was going around on the right side. When he pulled to the center of U. S. 40 he stayed there for some distance and I saw something that looked like a small child standing up between us. I was seated about two and one-half feet higher than the driver of that car. I had eight lights on. This car stayed in the center of the highway until he reached Third Street then I started around him. He gave no warning but pulled his car up to the front end part of the tractor; I put on the brakes, knew he would hit me; I hollered and put on the brakes as hard as I could, was up next to the curb when the impact came. When Hiatt started to turn I flashed my lights and threw on my brakes, held onto my truck, turned to the right, hit the curb and lost control and hit the tree. Couldn't get my legs on the seat in time, they were caught. Truck outfit that night weighed about 35,000 pounds. At 30 to 35 miles an hour it takes that kind of truck a length and a half to stop. Brakes were working and as I started around Hiatt I was going about 15 to 20 miles an hour at the most. Didn't see Hiatt signal. I was in a lot of pain, then the pressure broke my left leg 2, 3 inches from hip. My back was injured. In cab 25 minutes and then taken to hospital. Received medical treatment, had pin in leg, now have scars.'

Cross-Ex...