Holmes v. Combs

• Citation: 120 Ind.App. 331,90 N.E.2d 822
• Decision Date: 13 March 1950
• Docket Number: No. 17913,17913
• Parties: HOLMES v. COMBS.
• Court: Indiana Appellate Court

Page 822

90 N.E.2d 822

120 Ind.App. 331

HOLMES v. COMBS.

No. 17913.

Appellate Court of Indiana, in Banc.

March 13, 1950.

Byron Emswiller, Indianapolis, Albert Stump, Indianapolis, for appellant.

Fred A. Weaver, Petersburg, John O. Moomaw, Bloomfield, for appellee.

DRAPER, Chief Judge.

The appellee was riding in the front seat of an automobile driven by her husband. They were proceeding south on Highway 57 behind a truck operated by the appellant. After signalling his intention so to do, her husband tried to pass the appellant on the left. The appellant turned his truck to the left for the purpose of entering a side road which ran eastwardly from Highway 57. The vehicles collided and the appellee was injured.

The appellant appeals from a $5000 verdict in favor of the appellee.

The evidence concerning the occurrence is conflicting, but that most favorable to the appellee shows actionable negligence on the part of the appellant. The jury so found, and the question must be regarded as settled. The same is true regarding the question of proximate cause.

The appellant says the evidence shows contributory negligence on the part of the appellee's husband, and his negligence must be imputed to her because they were engaged in a joint enterprise. Whether the husband was contributorily negligent was also a jury question. Assuming, however, that he was, we reject the contention. The appellee and her husband were on the way with their two children to visit the latter's grandmother. A wife is not engaged in a joint enterprise with her husband merely because they are married and going to the same place in the same automobile for the purpose of making a social visit. Louisville, New Albany & Chicago Railway Co. v. Creek, Adm'r, 1892, 130 Ind. 139, 29 N.E. 481, 14 L.R.A. 733; Chicago, St. Louis and Pittsburgh Railroad Company v. Spilker, 1893, 134 Ind. 380, 33 N.E. 280, 34 N.E. 218; Brubaker v. Iowa County, 1921, 174 Wis. 574, 183 N.W. 690, 18 A.L.R. 303; Silsby v. Hinchey, 1937, St. Louis Court of Appeals, Missouri, 107 S.W.2d 812; Corn v. Kansas City C C. & St. J. Ry. Co., 1921, Mo.Sup., 228 S.W. 78; Bartlett v. Mitchell, 1933, 113 W.Va. 465, 168 S.E. 662; Huls v. Dalzell, 1933, 252 Ky. 13, 66 S.W.2d 28.

The appellee had not been watching the road ahead, and she testified she said nothing to her husband about attempting to pass the truck. Her husband testified that if she had called his attention to anything danagerous that he did not see himself, he would have heeded her warning. Such cooperation between husband and wife, and between others riding in the same automobile is not unusual. A wife's failure to warn her husband of a danger of which she is cognizant, but of which he is unaware, or a husband's failure to heed such a warning, if given, might amount to negligence on the part of the one failing so to do, Miller, Adm'r, v. Louisville, New Albany & Chicago Railway Co., 1891, 128 Ind. 97, 27 N.E. 339, 25 Am.St.Rep. 416, but we fail to see how it could evidence a 'recognized right of joint control' as claimed by appellant.

The appellant says the appellee herself was guilty of contributory negligence. That question, too, was one for the jury. We can find no evidence in this record which would make her so as a matter of law.

The following interrogatory was propounded to the jury: 'Was the side road which led to the east visible to the plaintiff (appellee) at the time the automobile in which she was riding first started to attempt to pass the truck?' The jury answered 'no'. The appellant says the jury clearly acted on the theory it was not visible, when as a matter of fact it was visible.

The evidence discloses there were no signs or markings on Highway 57 to indicate the presence of the side road. It further discloses the side road was not clearly visible to one travelling on Highway 57, and nobody coming down the slope from the north on Highway 57 would know it was there. The plaintiff testified she did not watch the road ahead continuously and did not see the side road. The answer finds ample support in the evidence.

With his motion for new trial the appellant filed an affidavit showing the time and manner of the taking of two photographs after the verdict was returned. He attached the photographs thereto and asserts they show the side road was in fact visible to the plaintiff at the time. The photographs would probably have been helpful to the jury had they been taken before trial and used at the trial. The record discloses no reason for failing to do so. Neither the affidavit nor the photographs attached thereto are before us for our consideration, for they were not brought in by bill of exceptions. Gerking v. Johnson, 1942, 220 Ind. 501, 44 N.E.2d 90; Butler v. State, 1945, 223 Ind. 260, 60 N.E.2d 137; McCallister v. State, 1940, 217 Ind. 65, 26 N.E.2d 391; Soucie v. State, 1941, 218 Ind. 215, 31 N.E.2d 1018.

The trial court refused to accede to the appellant's request that the jury be sent to an adjoining county to view the scene of the accident, although the appellee made no objection thereto. See Burns' Ind.Stat. § 2-2014. The request called for the exercise of a sound discretion on the part of the trial court. Chicago, I. & E. R. Co. v. Loer, 1901, 27 Ind.App. 245, 60 N.E. 319; Spickelmeir v. Hartman, 1920, 72 Ind.App. 207, 123 N.E. 232.

Unlike the scene of some accidents,...