Huey v. Milligan, 19134

• Decision Date: 16 December 1960
• Docket Number: No. 1,No. 19134,19134,1
• Citation: 171 N.E.2d 134
• Parties: Madge HUEY, Appellant, v. Glen Elmer MILLIGAN, Appellee. *
• Court: Indiana Appellate Court

Page 134

171 N.E.2d 134

Madge HUEY, Appellant, v. Glen Elmer MILLIGAN, Appellee. ^*

No. 19134.

Appellate Court of Indiana, Division No. 1.

Dec. 16, 1960.

Rehearing Denied March 20, 1961.

See 172 N.E.2d 871.

Hansford C. Mann, N. George Nasser, Terre Haute, Homer Ingram, Newport, for appellant.

Dix, Dix, Patrick & Ratcliffe, Terre Haute, for appellee.

COOPER, Judge.

This is an appeal from the Vermillion Circuit Court wherein the appellant, Madge Huey, filed her complaint in the court below, alleging, in substance, that she was operating her automobile along a two-lane public highway in Vermillion County, and that the appellee, Glen Elmer Milligan, was also operating his automobile on the same highway in the same direction and following appellant, and, as she reached a private road on the right side of the highway, she gave the arm signal of her intention to make a right turn, also that as she was attempting to make such turn, the appellee attempted to pass her car on the right, and, as the result, appellee's car ran into the right rear of appellant's car, causing appellant personal injuries, for which she asked damages. Issues were closed and the cause was submitted to a jury for trial. The jury returned its verdict, finding for the appellee.

Appellant filed a motion for a new trial, which the trial court overruled. The appellant's assigned error on appeal is, the lower court erred in overruling appellant's motion for a new trial.

That the first specification in the motion for a new trial is that the verdict is not supported by sufficient evidence, and the second specification is that the verdict is contrary to law; the third specification is based upon errors of law occurring before trial, and the fourth, on errors of law committed during the trial.

Appellant, in her brief, waived the first specification of the motion for a new trial. We are, therefore, only concerned with specifications two, three and four.

Appellant's specification No. 2 of her motion for a new trial is based upon her contention that the verdict is contrary to law on the theory that the undisputed evidence established that the appellee was guilty of at least one of the acts of negligence, as alleged in appellant's complaint; that the appellant did receive personal injuries, as alleged, and the only reason the jury found for the appellee was because the jury found that the appellant was guilty of contributory negligence.

In reviewing the record before us, it is apparent the record does not sustain appellant's theory.

In determining whether the verdict was contrary to law, this court will consider only the evidence most favorable to the appellee, together with all reasonable and varying inferences to be drawn therefrom. Gray v. Hawke Motor Sales, Inc., 1953, 124 Ind.App. 74, 112 N.E.2d 459; Rowe v. Johnson, 1945, 223 Ind. 289, 60 N.E.2d 529.

The record reveals the evidence was conflicting; however, the evidence most favorable to the appellee tended to establish the following facts:

U. S. Highway number 41, north of North Terre Haute, Indiana, where the accident occurred, was a two-lane black top highway, paved to a width of approximately twenty-four feet with a berm of about four feet on both sides. The highway ran north and south and was level and straight, in a rural area or district with residential houses on both sides of the highway with private driveways leading from the highway to the several houses located on both sides of the said highway.

Appellant's sister lived in a house located on the east, or right side of the highway going north, and a private driveway extended from the highway easterly and a little north, to the house, and garage, belonging to said sister. A few feet south of the sothern entrance to said private driveway were three mail boxes located on posts a few feet from the east edge of the paved portion of the highway.

On the date of the accident, the eighteenth day of February, 1955, in the early afternoon, the weather was clear and the highway was dry.

Appellant was taking her sister home, and was driving her automobile with her sister as a passenger, north on said highway. When she reached a point about seventy-five feet south of the entrance to her sister's driveway, the appellant put on her brakes to slow up and gave an arm signal of her intention to turn. She held her left arm straight out in a horizontal position, which indicated a left-hand turn.

The appellee was then and there following appellant in his automobile, and had been for some distance. Both cars were going about twenty-five miles per hour. There were no other automobiles on the highway going in either direction. When the appellant gave the arm signal, as aforesaid, she also turned her automobile a little to the left. Appellee, believing that she was going to turn left into one of the driveways on the west side of the highway, intended to pass her on her right, and, if necessary on the berm, or shoulder of the highway. When the appellant first applied her brakes to slow up, the appellee also applied his brakes and slowed down, but did not make an emergency application of his brakes until appellant abruptly turned right into her sister's driveway, at which time the appellee's car was wholly on the right half of the paved portion of the highway and thirty to thirty-five feet south of the appellant's car. When appellant turned right to enter the driveway, the appellee applied his brakes with such force that skid marks resulted on the highway thirty to thirty-five feet south of the driveway. The appellee also turned slightly to the right in an effort to avoid coming in contact with appellant's car, but was unable to stop in time. Appellee's left front fender came in contact with the appellant's right rear fender, at which point appellee's right wheels of his automobile were two or three feet off of the paved portion of the highway and on the berm thereof. As the result of the impact, the damages to both cars were negligible; in fact, the left front glass in appellee's headlight was not even broken.

Immediately after the accident, the appellant alighted from her autmobile and talked to appellee, and, in answer to a question whether or not she was injured, she said, 'No, just slightly shaken up'.

It appears from the record that there was conflict in the evidence regarding the injuries she claimed to have received as a result of the accident. The appellant attempted to show that she was suffering from a slipped disc in her spine, as a result of the accident; however, the court-appointed physician testified that after he examined appellant, he was unable to find any evidence of a slipped disc or any organic disease or impairment and his conclusion was that the appellant was merely emotionally upset and a hypochondriac.

The appellee did testify that when appellant gave her arm signal and turned slightly to the left that he intended to pass her on her right by driving upon the shoulder of the highway. However, the evidence most favorable to the appellee showed that before he had an opportunity to attempt to pass appellant on her right, she turned directly right in the path of his car; at which time his car was wholly on the paved portion of the highway and not on the shoulder of the road. Whether he intended to pass her on the right by driving on the shoulder of the highway is immaterial. Certainly, as a matter of law, a person is not guilty of negligence because he intends to commit a negligent act, but never, in fact, carries his intentions into effect.

The jury rendered a general verdict for the defendant. No interrogatories were submitted to the jury by either side. In reviewing the evidence in the record now before us, there is sufficient evidence of probative value upon which the jury could have found:

(1) That the defendant was not guilty of any acts of negligence as alleged in appellant's complaint;

(2) That if the defendant was guilty of any one of the acts of negligence as alleged, the appellant did not suffer any permanent injuries as a result of the accident.

This court cannot say, as a matter of law, that the only reason the jury found for the defendant was because she was guilty of contributory negligence, and, therefore, the question of the appellant's contributory negligence as advanced by her is wholly without merit and moot.

Specification of error three, sub-section (a) and four, sub-section (a) in the motion for new trial will be considered together which alleged that the court abused its discretion in overruling plaintiff's motion for a change of venue from the county, filed more than ten days after the issues were first closed; and abused its discretion in overruling the plaintiff's renewed motion for a change of venue from the county each time said renewal was made.

At the time such motion for a change of venue from the county was filed, there was in full force and effect Supreme Court Rule 1-12B, adopted September 21, 1955, effective January 2, 1956, that provided for the procedure in applying for a change of venue from the judge or the county.

It is admitted in appellant's motion for a new trial that the appellant's motion for a change of venue and her renewed motions for a change of venue from the county were filed more than ten days after the issues were first closed on the merits.

The applicable part of Supreme Court Rule 1-12B provides:

'* * * Provided, however, if the moving party first obtains knowledge of the cause for change of venue from the county or judge after the time above limited, (within ten (10) days after the issues are first closed on the merits) he may file said application, which must be verified personally by the party himself, specifically alleging when the cause was first discovered, how it was discovered, the facts showing the cause for a change, and why such cause could not have been discovered before by the exercise of due diligence. * * *'

The first affidavit for a change of...