Hunnicutt v. Boughner
| Decision Date | 28 November 1967 |
| Docket Number | No. 2,No. 20663,20663,2 |
| Citation | 141 Ind.App. 669,231 N.E.2d 159 |
| Parties | Robert Lloyd HUNNICUTT, Appellant, v. Terri Ellen BOUGHNER, by her Father and Next Friend, Richard C. Boughner, Appellee |
| Court | Indiana Appellate Court |
James W. Bowers, Palmer, Bowers & Brewer, Huntington, Lawrence McTurnan, Bredell, Martin & McTurnan, Indianapolis, for appellant.
Benjamin Piser, Piser p Cox, South Bend, for appellee.
This appeal was commenced in the Huntington Circuit Court by appellee's filing her complaint which alleged negligence on six (6) counts on appellant's part. These are as follows:
'(a) Failure to have and maintain a reasonable lookout in order to discover the presence of persons on or near but off the main-traveled portion of said highway, and particularly the plaintiff Terri Ellen Boughner.
'(b) Failure to slow or stop said automobile in order to avoid colliding with persons on or near but off the maintraveled portion of said highway, and particularly the plaintiff Terri Ellen Boughner.
'(c) Proceeding at a rate of speed greater than reasonable and prudent having regard to the actual and potential hazards existing, including particularly traffic conditions on said State Road No. 218 and said Salamonie River Bridge, and with further particular reference to the presence of small children including the plaintiff Terri Ellen Boughner.
'(d) Failure to have and maintain reasonable and proper control over said vehicle in order to avoid striking persons on or near but off the main traveled portion of said highway, and particularly the plaintiff Terri Ellen Boughner.
'(e) Failure to sound a horn or give other audible warning of the presence of said automobile which in the circumstances prevailing it was reasonably necessary to do so in order to insure safe operation of said automobile.
'(f) Abruptly turning said vehicle off a direct course down the main-traveled portion of said highway and onto the right side thereof without first having ascertained whether it was reasonably safe to do so.'
Trial was held by court, without the intervention of a jury, and the court returned a judgment for the plaintiff in the sum of $35,685.00.
Appellant's sole assignment of error is that the trial court erred in overruling his motion for a new trial. All the specifications in said motion raise but one question; was there sufficient evidence to sustain the judgment?
In the case of Kelly v. Davidson et al. (1958), 129 Ind.App. 384, 392, 154 N.E.2d 888, this court stated the following rules in regard to appeals of this nature:
'Our court has many times held that it is well settled that a decision or finding must be based upon the proven facts and cannot be based upon mere guess, conjecture, surmise, possibility or speculation.
'Evidence sufficient to sustain a judgment must be substantial evidence with probative value.
"By probative value we mean evidence 'carrying quality of proof and having fitness...
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...Ind.App. 384, 392, 154 N.E.2d 888, 892. See Halkias v. Gary Nat. Bank (1968), 142 Ind.App. 329, 234 N.E.2d 652; Hunnicutt v. Boughner (1967), 141 Ind.App. 669, 231 N.E.2d 159; Haney v. Meyer (1966), 139 Ind.App. 663, 215 N.E.2d To assume that the judgment is indivisible (not severable) is t......
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...Ind.App. 309, 314, 84 N.E.2d 897. See Also, Halkias v. Gary Met. Bank (1968), 142 Ind.App. 329, 234 N.E.2d 652; Hunnicutt v. Boughner (1967), 141 Ind.App. 669, 231 N.E.2d 159; Newsom v. Pennsylvania R. Co. (1962), 134 Ind.App. 120, 186 N.E.2d No evidence presented at the hearing suggests a ......
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