Jones v. Furlong

Citation97 N.E.2d 369,121 Ind.App. 279
Decision Date17 March 1951
Docket NumberNo. 18082,18082
PartiesJONES et al. v. FURLONG.
CourtCourt of Appeals of Indiana

John R. Browne, Jr. of Campbell, Gemmill, Browne & Ewer, Marion, Lloyd McClure, McClure, Shenk & Ellis, Kokomo, for S. Williams.

Hugh E. Reynolds, Slaymaker, Locke & Reynolds, Indianapolis, Joseph A. Noel, Jump, Winslow & Noel, Kokomo, for Grady Gragg & Lawrence Jones.

John E. Fell, Fell, Life & LeVan, and Max C. Shirley, all of Kokomo, for appellee.

MARTIN, Judge.

This is an appeal from a judgment in favor of the appellee, in an action for damages for the alleged wrongful death of appellee's husband in a collision between an automobile which the appellee's decedent was driving and the tractor-trailer truck operated by the appellants, said wrongful death being the result of the alleged negligence of the appellants.

The cause was tried by a jury on the issues formed by the appellee's amended complaint and appellants' answers. The jury returned a verdict in favor of the appellee and against the appellants, awarding damages in the amount of $5,591.67 to the appellee.

The errors assigned for reversal are that the court erred in overruling appellants' motions for a new trial.

The grounds set forth in each of said motions for a new trial are:

'(a) The verdict of the jury is not sustained by sufficient evidence.

'(b) The verdict of the jury is contrary to law.

'(c) The court erred in not instructing the jury, at the conclusion of the evidence, to return a verdict for the defendants.'

The appellant, Grady Gragg, asserts on this appeal an additional ground for reversal which is not common to the other two appellants. It is the position of Grady Gragg that Lawrence Jones, at the time the accident occurred, was not his agent or employee, as charged in the amended complaint, so as to create a legal liability against him for the acts of Lawrence Jones.

The following acts of negligence were alleged in the appellee's amended complaint.

'10. That the defendants and each of them, at said time and place were careless and negligent in the following particulars, to-wit:

'A. The defendants drove and operated the tractor-trailer to the left of said center lane and directly in front of the automobile driven by plaintiff's decedent without giving any warning of intention to so operate said tractor-trailer outfit from the east side of the highway to the west side thereof.

'B. The defendants and each of them through their agent and servant and employee Lawrence Jones, did then and there carelessly and negligently fail to see and observe the automobile driven by plaintiff's decedent as aforesaid, so that the defendant, Lawrence Jones as agent, servant and employee of the defendants Grady Gragg and Sidney J. Williams, doing business as Ready Truck Lines, caused the tractor-trailer to be operated in front of said automobile driven by plaintiff's decedent in such a way that plaintiff's decedent was unable to avoid a violent collision with said tractor-trailer.

'C. The defendants and each of them through the agent, servant and employee, Lawrence Jones, negligently and carelessly failed to keep a proper lookout for the automobile driven by plaintiff's decedent so that as a direct and proximate result thereof, caused by said tractor-trailer, the tractor-trailer was operated across Indiana State Highway Number 9 and to the west of the center line thereof and directly into the path of the automobile driven by plaintiff's decdent.

'D. That the defendants and each of them through their agent, servant and employee Lawrence Jones at said time and place negligently and carelessly failed to operate said tractor-trailer so as to avoid a collision with the automobile driven by plaintiff's decedent.'

The case at bar involves a violation of a statutory duty. Burns' Stat. § 47-2023, reads in part as follows:

'(a) No person shall slow down or stop a vehicle, or turn a vehicle from a direct course upon a highway, unless and until such movement can be made with reasonable safety, and then only after giving a clearly audible signal by sounding the horn if any pedestrian may be affected by such movement, or after giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement.

'(b) A signal of intention to turn right or left shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.'

The appellants contend that the evidence fails to show the defendants guilty of negligence which proximately caused the injury and death of the appellee's decedent.

The appellants further contend that the facts, as shown by the evidence, do not support a reasonable legitimate inference of any negligence whatsoever on the part of appellants, as charged in the amended complaint, and it was consequently the duty of the trial court, under the circumstances, to have instructed the jury to find for the defendants.

By the verdict, the jury found that the appellants were negligent, which was a proximate cause of the collision. The appellants contend that this finding was not sustained by sufficient evidence and was contrary to law. If the facts are in dispute, or if reasonable men may draw a different conclusion from undisputed facts, the question of negligence is one for the jury; but if the facts are not in dispute, or if the facts most favorable to the proponent, together with all reasonable and logical inferences that may be drawn there from be assumed as true, and reasonable men could draw only one inference from such assumed facts and inferences, then the question of negligence becomes one of law for the court. Gamble v. Lewis, 1949, 227 Ind. 455, 85 N.E.2d 629; Tabor v. Continental Baking Co., 1941, 110 Ind.App. 633, 641, 38 N.E.2d 257; Baltimore & Ohio R. Co. v. Reyher, Adm'x, 1939, 216 Ind. 545, 24 N.E.2d 284; Indianapolis & Cincinnati Traction Co. v. Roach, 1922, 192 Ind. 384, 135 N.E. 334; Indiana Ins. Co. v. Handlon, 1940, 216 Ind. 442, 24 N.E.2d 1003; Northwestern Transit, Inc., v. Wagner, 1945, 223 Ind. 447, 61 N.E.2d 591; Dieckman v. Louisville & S. I. Traction Co., 1909, 46 Ind.App. 11, 89 N.E. 909, 91 N.E. 179; 65 C.J.S., Negligence, § 252; 5 Am.Jur. 874, § 668.

Likewise, the question of proximate cause is generally a question for the jury to determine, but it may become a question of law for the court under the same circumstances that negligence becomes a question of law. Gamble v. Lewis, supra; Tabor v. Continental Baking Co., supra; Anti-Mite Engineering Co. v. Peerman, 1943, 113 Ind.App. 280, 286, 46 N.E.2d 262; Cleveland C., C. & St. L. R. Co. v. Powers, 1909, 173 Ind. 105, 88 N.E. 1073, 89 N.E. 485; Haskell & Barker Car Co. v. Przezdziankowski, 1908, 170 Ind. 1, 15, 83 N.E. 626, 14 %.l.r.a./,N.S., 972; Jones v. Cary, 1941, 219 Ind. 268, 37 N.E.2d 944; 5 Am.Jur. 875, § 669; 65 C.J.S., Negligence, § 265.

In passing upon a motion for a directed verdict in a negligence action, the court is merely called upon to determine if there is some evidence of negligence on the part of the defendant which the jury is entitled to consider in deciding that issue, or if the undisputed evidence discloses that plaintiff was guilty of negligence that proximately contributed to his injury or death. Baltimore & Ohio R. Co. v. Reyher, Adm'x, supra.

There is evidence that on March 8, 1947, at about 11:15 A. M., Lawrence Jones was driving a tractor-trailer truck north on State Highway 9, approaching the decedent south of the intersection of U. S. Highway 35. The weather was good; the sun was shining; the road was dry and Jones could see north quite a distance, less than a mile, there being nothing to obstruct the view. The road was straight; it was open country and it was a clear day.

Appellee's decedent was traveling south in an Oldsmobile passenger car at the rate of 60 miles an hour, approaching Jones and the intersection of U. S. Highway 35. There was a caution light at the intersection of State Highway 9 and U. S. Highway 35. There was no traffic on U. S. Highway 35 or at the intersection of said U. S. Highway 35 at the time of the accident in question.

When Jones started to make a left turn into a filling station and lunch room he was traveling 20 miles an hour, and he did not apply his brakes at any time. He was traveling at a speed of 5 to 10 miles an hour when the impact occurred between his truck and the car. Jones gave no hand signal of such left turn but only flickered his lights and the truck driver (Jones), was not sure how far apart they were when he (Jones) started to turn. Decedent's car never left the road until Jones' tractor-trailer truck was across the road. Jones saw decedent's car as it left the pavement. Jones was blocking the entire road by crossing the same with his truck, which was 40 feet long, the front wheels of said truck being at the west edge of the road, thereby blocking both traffic lanes.

The point of impact was approximately 300 feet south of the intersection and 25 feet west of State Highway 9. The wheel tracks of the decedent's car came off the highway south of the intersection close to 200 feet from the point of impact.

Jones testified as follows: 'Well, I saw him when he started, he was running so fast I had no idea which way he was going to turn after I saw him leave the road. As he got close to me I saw he was going to go too far west. I turned east, but I was going so slow there was nothing I could do. I couldn't turn to miss him. After the accident he was south of my truck, headed east. The front end was 10 or 15 feet southwest, his rear end hit into the building; he knocked my tractor southwest; his car passed completely in front of my truck.'

The driver of the tractor-trailer truck, making a lefthand turn without first giving a statutory signal of intention to turn, given continuously during not less than one hundred feet traveled by the vehicle...

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16 cases
  • Mamula v. Ford Motor Co., 371A49
    • United States
    • Court of Appeals of Indiana
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    ...if there is some evidence of negligence on the part of the defendant which the jury is entitled to consider. Jones v. Furlong (1951), 121 Ind.App. 279, 97 N.E.2d 369. Where the evidence is such that the minds of reasonable men might differ, or if the determination of negligence depends on c......
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    ...if there is some evidence of negligence on the part of the defendant which the jury is entitled to consider. Jones v. Furlong (1951), 121 Ind.App. 279, 97 N.E.2d 369. Where the evidence is such that the minds of reasonable men might differ, or if the determination of negligence depends on c......
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    ...if there is some evidence of negligence on the part of the defendant which the jury is entitled to consider. Jones v. Furlong (1951), 121 Ind.App. 279, 97 N.E.2d 369. Where the evidence is such that the minds of reasonable men might differ, or if the determination of negligence depends on c......
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    ...if there is some evidence of negligence on the part of the defendant which the jury is entitled to consider. Jones v. Furlong (1951), 121 Ind.App. 279, 97 N.E.2d 369. Where the evidence is such that the minds of reasonable men might differ, or if the determination of negligence depends on c......
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