Hoesel v. Cain

• Decision Date: 30 March 1944
• Docket Number: Nos. 27959,27960.,s. 27959
• Citation: 53 N.E.2d 769,222 Ind. 330
• Parties: HOESEL v. CAIN et al. KAHLER v. SAME.
• Court: Indiana Supreme Court

222 Ind. 330

53 N.E.2d 769

HOESEL

v.CAIN et al.

KAHLER

v.SAME.

Nos. 27959, 27960.

Supreme Court of Indiana.

March 30, 1944.

On petition for rehearing.

Petition denied.

For former opinion, see 53 N.E.2d 165.Appeal from Marshall Circuit Court; John W. Kitch, Judge.

Stevens & Stevens, of Plymouth, and Hillis & Hillis, of Logansport, for George Hoesel, Jr.

Delph L. McKesson and Marshall F. Kizer, both of Plymouth, and Louis A. Reidelback, of Winamac, for George Kahler.

Paul E. Reed and William J. Reed, both of Knox, for Hannah Cain.

RICHMAN, Judge.

In a petition for rehearing appellee questions only the validity of our holding that there was no evidence upon which instructions as to defective brakes might be based. The principal argument is that appellant Kahler testified that he was driving at the rate of 40 to 50 miles per hour and that he applied the brakes when distant 80 to 90 feet from the Hoesel car. Appellee then cites Paragraph (b) of § 47-2228, Burns' Replacement, which provides that a motor vehicle equipped with four-wheel brakes traveling at 20 miles per hour must be capable of being stopped within 30 feet, or, as appellee says, ‘at a distance of one and one-half times its speed.’ Erroneously appellee then reasons that ‘a car going 50 miles per hour should have been equipped with brakes capable of stopping it within 75 feet * * *’ (less than the distance between the two cars), and concludes that the brakes were inadequate. This fallacious argument was evidently feared by appellant Kahler when he was objecting to appellee's tendered instruction 10, which reads:

‘I further instruct you that on July 20, 1941, Section 47-2228, B.R.S. 1940 Replacement in part in substance provided that every motor vehicle should be capable at all times and under all conditions of loading, of being stopped on a dry, smooth, level road and free from loose material upon the application of the service (foot) brake when traveling twenty (20) miles per hour within a distance of thirty (30) feet if such motor vehicle had brakes on all wheels.

‘You may take the provisions herein set forth of such statute into consideration in determining the question of negligence if any, on the part of the defendant, Kahler.'

The objection made in compliance with Rule 1-7 is in part as follows:

‘* * * that the instruction is misleading, in that it informs the Jury as to the distances in which a car must be able to stop; going twenty miles an hour; whereas, there is no evidence before the Jury that the Kahler car was at the time or any time in close proximity to the accident, traveling at twenty miles an hour; that it is further misleading in that it would let the jury believe, in fact would lead them to believe that a car travelling at twice the rate of speed, could stop in twice the distance, which would not be a correct inference or assumption for the Jury to draw.

‘For the further reason that the statement is not complete and the part of the statute quoted is not complete, is only a part of it and is the part not applicable to the evidence in this case.

‘For the further reason there has been no proof of defective brakes.

‘And that in addition, any instruction concerning brakes or defective brakes would not in any way be applicable to the evidence in the case.'

In writing the original opinion we thought it sufficient to say that this and another instruction were erroneously given because inapplicable to any evidence. But in view of appellee's present argument, which may have been made to the jury or may be made to another jury, we have given the whole subject further consideration.

A traffic engineer has said that ‘braking distance varies as the square of the speed; that is, if the speed is doubled, the stopping distance is quadrupled, and if the speed is trebled the stopping distance becomes nine times as great.’ J. S. Baker, author of Public Safety Memo. No. 22 of National Safety Council, Published July 1937 (Revised), Reprinted April, 1940. He says also that ‘the best present legislation regarding brakes is...