Johnson v. Mills

• Decision Date: 20 September 1973
• Docket Number: No. 1--173A16,1--173A16
• Citation: 157 Ind.App. 620,301 N.E.2d 205
• Parties: Lyman JOHNSON, Defendant-Appellant, v. John L. MILLS, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 205

301 N.E.2d 205

157 Ind.App. 620

Lyman JOHNSON, Defendant-Appellant, v. John L. MILLS, Plaintiff-Appellee.

No. 1--173A16.

Court of Appeals of Indiana, First District.

Sept. 20, 1973.

James J. Stewart, Harold E. Atherly, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for defendant-appellant.

John F. Townsend, Jr., W. Scott Montross, Townsend, Hovde & Townsend, Indianapolis, for plaintiff-appellee.

ROBERTSON, Presiding Judge.

Defendant-appellant (Johnson hereafter) is appealing a jury verdict of $36,000 rendered against him and in favor of plaintiff-appellee (Mills) in a personal injury suit. The action was commenced by the filing of Mills' complaint which alleged, inter alia, that on May 6, 1968, Johnson was operating a 1951 Chevrolet truck south on North Madison Avenue in Greenwood, Indiana, which struck and thereby permanently injured Mills who was laying sod along the west side of Madison Avenue at the time. The complaint further alleged that at the time Mills was struck he was working immediately to the west of the curb and that Johnson was negligent in the following respects:

'(a) Failed to keep a reasonable lookout so as to observe plaintiff.

(b) Failed to keep his vehicle under control by turning the wheel and steering same so as to avoid running into and striking plaintiff.

(c) Failed to reduce his acceleration and apply his brakes to avoid running into and striking plaintiff.

(d) Failed to restrict his speed to avoid colliding with plaintiff.

(e) Drove his vehicle off of the east (west) edge of the highway and directly into plaintiff.

(f) Failed to blow his horn or give plaintiff any other warning that he was about to run into and strike him when he knew or should have known that plaintiff was close to the highway and that defendant was driving dangerously close to plaintiff.'

The issues as raised by Johnson's Motion to Correct Errors, which was overruled, and argued on appeal, are threefold: was there sufficient evidence to support the jury's verdict; did the trial court err in overruling Johnson's motion for partial judgment on the evidence at the close of plaintiff's evidence; and did the trial court err in giving certain plaintiff's instructions.

Before determining the sufficiency of the evidence it should be pointed out that in so doing we are bound by the well established rule that only the evidence most favorable to the appellee may be considered and we can neither weigh the evidence nor determine the credibility of witnesses. Nugent v. Smith (1972), Ind.App., 287 N.E.2d 899; Engelbrecht v. Tri-State Franchisers, Incorporated (1972), Ind.App., 287 N.E.2d 365; Wm. J. & M. S. Vesey, Inc. v. Hillman (1972), Ind.App., 280 N.E.2d 88.

Due to the fact that there were no eyewitnesses, other than the defendant Johnson himself, to the actual striking of Mills, much of the circumstances of this incident must be constructed from the testimony of witnesses who made observations immediately prior to or after Mills was struck. It would appear that a great deal of the factual dispute between the parties turns on the question of whether Mills was located to the west of the curb or in the street at the time he was struck. One witness for plaintiff who was employed on the same work crew placed Mills approximately a foot or more west of the curb of the southbound lane of Madison Avenue immediately prior to being struck. Mills, according to the witness, was rolling out sod with his back to the road and facing south or southwest. The witness could not make a definitive statement as to whether or not the wheels of Johnson's vehicle came over the curb. The witness did, however, state that he saw the truck fender come over the curb. A second witness for plaintiff, who was also a member of the work crew, testified that immedately prior to the accident Mills was standing to the west of the curb but he did not know the exact location of Mills when he was struck. The same witness testified that he observed a black tire mark on the curb after Mills was struck which was not there before. The plaintiff Mills testified that prior to the accident he was unrolling a strip of sod next to the curb with his body facing to the south. Mills stated that he was leaning over and backing up as he unrolled the sod and while so doing he was struck without warning in the buttocks by the Johnson vehicle. Mills further testified that he was not in the street but was standing next to the curb in the area in which he was laying sod.

In conflict with Mills' testimony was that of the defendant Johnson, who testified that as he approached the scene of the accident he observed Mills in the street. Johnson stated that he slowed down and when the front end of his truck came even with Mills, Mills started backing up. Johnson further testified that he was never closer than three to four feet away from the curb and that it was the right hand door of his truck which struck Mills.

In an effort to prove that Johnson's truck did not go over the curb, an accident reconstruction expert testified on behalf of Johnson that the force of a vehicle going up and over a curb, under circumstances similar to this accident, would cause identifiable damage to the wheel rim, the tire, the curb, and to the area in which the vehicle would come down beyond the curb. The witness stated that he inspected the curb, the truck, and photographs of the truck and he found no damage to any of the vehicle's wheel rims. Johnson's expert witness also testified that his inspection of the truck revealed damage to the right front fender which appeared to be quite old by virtue of the presence...