Johnson v. Wilson, 15146.

• Decision Date: 30 March 1936
• Docket Number: No. 15146.,15146.
• Citation: 200 N.E. 729
• Parties: JOHNSON v. WILSON.
• Court: Indiana Appellate Court

200 N.E. 729

JOHNSON

v.WILSON.

No. 15146.

Appellate Court of Indiana, in Banc.

March 30, 1936.

Appeal from Johnson Circuit Court; Chas. B. Staff, Judge.

Action by Bertha Wilson, administratrix of the estate of Harry D. Wilson, deceased, against Clarence Johnson. From a judgment for plaintiff, defendant appeals.

Reversed, with instructions.

Jackiel W. Joseph, of Indianapolis (Linn D. Hay and Theodore R. Dann, both of Indianapolis, of counsel), for appellant.

Owen S. Boling, of Indianapolis, Henry E. White, of Franklin, and E. M. Hornaday, of Lebanon, for appellee.

WIECKING, Judge.

This was an action below by Bertha Wilson, administratrix of the estate of Harry D. Wilson, deceased, against the appellant, Clarence Johnson, for damages on account of the death of appellee's intestate alleged to have occurred as a result of the negligent operation of an automobile by the appellant. The appellant filed an answer in general denial to appellee's amended complaint, closing the issues. The case was tried by a jury, resulting in a general verdict in favor of the appellee and against the appellant in the sum of $4,000. Judgment was rendered thereon. A motion for new trial was seasonably filed and overruled by the court, and the appellant now prosecutes this appeal. The only error assigned in this cause is that the court erred in overruling appellant's motion for new trial. Six of the reasons for new trial are presented by appellant.

It is alleged by the appellee (plaintiff below) that on the 8th day of March, 1930, about 9 p. m., appellee's intestate was driving a Ford roadster east on a public highway known as Seventy-First street, which runs east and west; that said Seventy-First street is intersected by a road running north and south known as the Zionsville road; that while appellee's intestate was so driving east on Seventy-First street, the appellant, with three boys as companions, was carelessly and negligently driving a Ford sedan south on said Zionsville road at an unlawful rate of speed; that appellant saw the roadster as it was being driven by appellee's intestate from the west toward said intersection or by the exercise of reasonable care could have seen such roadster; that said intestate drove to the intersection of said Zionsville road and said Seventy-First street and had his roadster at or to the east of the center of said intersection, and while he was traveling east at that point, the appellant carelessly and negligently drove said Ford sedan into and against the north side of the roadster of appellee's intestate; that by reason of said collision, both machines caught fire, and as a result thereof, appellee's intestate was fatally injured and died within a few minutes. That the defendant's negligence was the proximate cause of the decedent's death. Plaintiff further averred that appellee's intestate left surviving him his widow, the plaintiff, and a child, age three years, both of whom were solely dependent upon the deceased for their support.

The contention of the appellant under its motion for new trial presents the question on the sufficiency of the evidence; that the verdict was contrary to law; error of the court in ruling on evidence; and error of the court in giving or refusing to give instructions.

[1] The two causes for new trial, that the verdict is not sustained by sufficient evidence and that the verdict is contrary to law, may be considered together. In so doing, we must consider only the evidence which tends to support the verdict and determine whether or not the plaintiff has proven the material allegations of her complaint.

The evidence offered to support the allegations of negligence in substance is as follows: That appellant was the operator of the car which collided with the car in which appellee's intestate was killed; that appellant, together with three other companions, left Zionsville at 9 o'clock p. m., and that the accident occurred a short time...