Huey v. Milligan, 19134

• Decision Date: 20 March 1961
• Docket Number: No. 1,No. 19134,19134,1
• Citation: 172 N.E.2d 871
• Parties: Madge HUEY, Appellant, v. Glen Elmer MILLIGAN, Appellee. *
• Court: Indiana Appellate Court

Page 871

172 N.E.2d 871

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

No. 19134.

Appellate Court of Indiana, Division No. 1.

March 20, 1961.

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

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

COOPER, Judge.

Appellant, in her petition for a rehearing, claims that this court erred in its original opinion by concluding that appellant, in giving a turn signal, held her arm, 'in a horizontal position'.

The record of the testimony of the appellant on this subject, most favorable to the appellee, was, as follows 'Q. You say you held your hand straight out? A. That is right.

'Q. Will you show the Jury what signal you gave? A. Held my hand straight out the window like that (indicating) and I had my brake lights on that I was going to make that turn, as I often done many times before.

* * *

* * *

'Q. Now you stated that you gave a signal of your turn beforehand,--what kind of a signal did you give? A. Well I put on my brake lights and rolled my window down and held my left hand straight out (indicating) that I was going to angle in this driveway at the right.

'Q. How far would you say from the driveway you were at the time you gave that signal? A. Well I would say I was down to the end of the fence at the end of the driveway. That would be about fifty yards I imagine that I was going turn in there that I gave my signal.

* * *

* * *

'Q. And you had your arm out in this right hand signal, all that time? A. I had my right arm straight out. I mean my left arm.'

The appellant's sister, Faye Christopher, was a passenger in appellant's automobile, and, on direct examination, testified, in part, as follows:

'Q. Now as a sort of a re-cap to some of the testimony yesterday on the approach to your driveway, did Mrs. Huey give any signal of her intention to turn? A. She sure did.

'Q. And what did she do to signal? A. The left hand--straight out. (Indicating).'

As stated above, the evidence most favorable to the appellee tended to reveal that before the appellant turned right into her sister's driveway, she gave an arm or hand signal by holding her left arm or hand straight out of the left window of her automobile.

It is a physical fact that if a driver of an automobile holds or her arm or hand straight out of the window of the automobile, the only reasonably inference that could possibly be drawn from such evidence would be that the arm or hand was in a horizontal position. To arrive at any other conclusion would be pure asininity.

It is apparent from the record in this appeal that appellant, in her original appeal, proceeded on the theory that the undisputed evidence established that the defendant in the trial court (appellee herein) was guilty of negligence, and that plaintiff (appellant herein) had suffered permanent injuries as the result of appellee's negligence and the only reason the trial jury rendered its verdict for the defendant was because the jury found that the appellant had been guilty of contributory negligence. This theory was and is untenable.

This court will reiterate what was held in its original opinion, as follows :

'The jury rendered a general verdict for the defendant. No interrogatories were...