Highshew v. Kushto

• Decision Date: 07 February 1956
• Docket Number: No. 18691,18691
• Parties: Gertrude C. HIGHSHEW, Appellant, v. James E. KUSHTO, Appellee.
• Court: Indiana Appellate Court

Page 652

131 N.E.2d 652

126 Ind.App. 584

Gertrude C. HIGHSHEW, Appellant, v. James E. KUSHTO, Appellee.

No. 18691.

Appellate Court of Indiana, In Banc.

Feb. 7, 1956.

Rehearing Denied March 22, 1956.

Stevens & Wampler, Plymouth, George Stevens, Plymouth, of counsel, Hammerschmidt & Johnson, Milton A. Johnson, So. Bend, for appellant.

Marshall F. Kizer, Plymouth, John W. Montgomery, So. Bend, for appellee.

CRUMPACKER, Judge.

The appellee suffered personal injuries when a motorcycle which he was driving collided with a 'pick-up' truck driven by the appellant on a public highway in St. Joseph County, Indiana, at 11:20 p. m. on May 15, 1952. Alleging that such collision was caused solely by the careless and negligent manner in which the appellant operated said truck at the time and place, the appellee brought this action to recover resulting damages and was awarded a verdict of $18,000 at the hands of a jury upon which verdict judgment was duly entered.

The facts most favorable to the verdict may be summarized as follows: Both the appellant, driving a 'pick-up' truck, and the appellee, driving a motorcycle, were traveling north on a county highway in St. Joseph County, Indiana, known as Grape Road. Said highway is paved with a strip of 'blacktop' 19 feet wide which, at the time of the accident in suit, was dry. The weather was clear and the visibility good. The collision occurred at the entrance to a private driveway leading to the appellant's home on the west side of said Grape Road. As the appellee overtook the appellant he was traveling at about 35 miles per hour and the headlight on his motorcycle was burning. Desiring to pass he flicked said headlight and sounded his horn. The appellant thereupon drove her truck to the right or east edge of the pavement and slowed down. Believing that she did this for the purpose of letting him by the appellee moved over to the left or west side of the road and increased his speed to about 40 miles per hour preparatory to passing. At this time he was approximately 75 feet to the rear of the appellant's truck and when he reached a point 50 to 60 feet to the rear thereof the appellant, without giving any signal of her intention to change her course, turned her truck from the right side of the road and drove it directly across the appellee's path for the purpose of entering the driveway leading to her home. The appellee, in an effort to avoid the impending collision, attempted to pass behind the truck by swerving to his right but was unsuccessful and struck the left rear corner of the truck bed. Although the appellant knew there was a vehicle of some kind behind her she traveled some 300 feet immediately prior to making the turn above described without once glancing in her rearview mirror or otherwise looking back.

The appellant makes no serious contention that these facts are insufficient to sustain the jury's finding of negligence on her part but she insists that other undisputed facts and circumstances in the case compel the conclusion that the appellee's own negligence contributed proximately to bringing about the accident and therefore the verdict is contrary to law. This contention is based largely on the appellee's statement that he could turn his motorcycle from one side of the road to the other in a distance of 15 feet, and traveling at 50 miles per hour he could stop the same in 60 to 70 feet. Therefore, the argument runs, the appellee, in the exercise of reasonable care, had ample opportunity to return to the right side of the road and pass behind the appellant's truck as at the very least he was 50 feet away when she made the left turn or, going at 40 miles per hour, as he testified he was, he could have stopped in time to have avoided the accident, neither of which courses of conduct he made any effort to follow. Confined to distance alone this argument seems plausible but it wholly omits the time element. We take judicial notice of the fact that a motorcycle going 40 miles per hour travels 60 feet in one second. If the appellee was 50 feet away when the appellant turned in front of him he had less than a second to get his foot on the brake and turn to the east side of the road. He testified he tried to do both but didn't have time. The appellant rejects the 60 feet per second formula because she says she was moving in the same direction at about 30 miles per hour but this contention is palpably fallacious as when she made a right angle turn to enter her driveway limitations as to time and space became absolute.

We think the evidence in this case clearly justified the jury in concluding that the appellant's negligence placed the appellee in a position of sudden peril. Whether he did what an ordinarily careful and prudent man would have done under the circumstances was for the jury to determine. The appellant insists, however, that negligent speed on the part of the appellee which contributed to the accident appears in the record as a matter of law. The only direct evidence on the question of the appellee's speed is his own testimony that at the time of the accident and immediately prior thereto he was not traveling in excess of 40 miles per hour. This testimony is overridden, says the appellant, by the distance her truck was moved by the collision and the extensive damage done thereto, all of which compels the inference that the appellee was traveling at a highly dangerous and negligent rate of speed at the moment of impact. Surely the choice between the appellee's testimony and the inferences upon which the appellant relies lay with the jury and not with the court. It is only when the facts are undisputed and only a single inference can be drawn therefrom that the court can say, as a matter of law, that a certain course of conduct constitutes contributory negligence. Newton v. Cecil, Ind.App.1955, 124 N.E.2d 713. We find no such situation in the present record.

The appellant next attacks the judgment on the ground that the verdict upon which it rests is excessive. The evidence most favorable to the appellee on the question of damages tends to establish that his expenses, incurred by reason of the accident, including hospital bills, loss of wages, doctor bills and nurses hire amounted to $7,057. His physical injuries consisted of a severely comminuted compound fracture of the right patella, a fracture of the left clavicle, a compound fracture of the lower left radius, a fracture of the right fifth metacarpal, a fracture of the right maxilla and lateral wall of the sinus, a fracture of the ulnar styloid, lacerations over the right eye and abrasions over most of the face and body. Convalescence was slow and extremely painful and has resulted in a permanent partial impairment in the functions of the right knee and wrist, a permanently disfigured face and a painful traumatic arthritis. The verdict is for $18,000. In order to be cause for reversal the verdict must be shown to be so excessive as to indicate that the jury acted from prejudice, partiality or corruption. Indianapolis Railways v. Williams, 1945, 115 Ind.App. 383, 50 N.E.2d 586; Swallow Coach Lines, Inc., v. Cosgrove, 1938, 214 Ind. 532, 15 N.E.2d 92; Jones v. Cary, 1941, 219 Ind. 268, 37 N.E.2d 944. We find nothing in the record that indicates that the verdict in this case was prompted by anything but an honest desire on the part of the jury to reasonably compensate the appellee for his injuries and attendant suffering. For comparable verdicts held not to be excessive see Samuel E. Pentecost Const. Co. v. O'Donnell, 1942, 112 Ind.App. 47, 39 N.E.2d 812; Chicago, I. & L. R. Co. v. Stierwalt, 1928, 87 Ind.App. 478, 153 N.E. 807, and cases cited.

Upon the voir dire examination of one Alfred Drews touching his competency to act as a juror in this cause it was established that he had bought a policy of insurance on his wife's automobile from the Inter Insurance Exchange of the Chicago Motor Club. By reason of this he was challenged for cause by the appellee and excused by the court. The appellant complains of this not on the ground that the challenge for cause was erroneously sustained but because the incident, in effect, informed the whole jury that the appellant was insured by the Inter Insurance Exchange of the Chicago Motor Club which was bound to pay any judgment that was rendered against her. If the incident above described had the effect she attributes to it her remedy was to ask the court to admonish the jury that the fact the appellant was insured should not be considered in reaching a verdict or, if she felt that such an admonition would not remedy the harm done, she should have moved that the entire panel be discharged and a new one assembled. She did neither. The law does not permit a litigant to gamble on the possibility of a favorable verdict and if disappointed ask for a reversal by reason of irregularities which could have been cured by proper action before the verdict. Gamble v. Lewis, 1949, 227...