Jones v. Kasper

• Decision Date: 06 May 1941
• Docket Number: 16498.
• Citation: 33 N.E.2d 816,109 Ind.App. 465
• Parties: JONES et al. v. KASPER.
• Court: Indiana Appellate Court

33 N.E.2d 816

109 Ind.App. 465

JONES et al. v. KASPER.

No. 16498.

Appellate Court of Indiana, in Banc.

May 6, 1941

Thorpe Bamber & Harrison, of Hammond, for appellants.

Bomberger Peters & Morthland, of Hammond, for appellee.

BLESSING Judge.

Appellee recovered a judgment against the appellants in an action brought by him for damages on account of personal injuries sustained when a Chevrolet automobile which he was operating and a Stutz roadster, being driven by one George Kelleher collided at a street intersection in the city of Hammond, Indiana.

The complaint was in three paragraphs, and appellants, the defendants thereto, closed the issues by filing an answer wherein they "separately, severally, and jointly" denied each material allegation of each paragraph of said complaint.

The cause was tried with a jury, and in due course a verdict in favor of appellee and against all appellants for the sum of $20,000 was returned. Judgment in accordance with the verdict against the defendants (appellants) "and each of them" was rendered. Thereafter, appellants separately, severally and jointly duly filed their motion for a new trial, which was overruled by the court, the appellants each separately excepting to such action. This appeal followed. The error assigned and relied upon for reversal is the overruling of said motion.

Each paragraph of the complaint avers, in substance, among other things, that appellants were driving north on Calumet Avenue at the time the collision occurred; that appellant George Kelleher was doing the driving; and that the other two appellants "each directed the control and operation" of said automobile, "or each had the equal right to direct the control or operation thereof."

The charge of negligence in the first paragraph of complaint is that said automobile was being driven "at a careless, negligent and unlawful rate of speed, to-wit, sixty miles per hour, which was greater than reasonable and prudent under the circumstances then existing; that the defendant, George Kelleher, was further negligent in driving said Stutz at such speed as to endanger the life and limb of the plaintiff; that by reason of such negligent conduct said Stutz was driven into and upon the car of the plaintiff in the manner aforesaid; that by reason of said facts each of said defendants was negligent and that said negligence proximately caused the injuries to the plaintiff as hereinafter alleged without any fault on the part of the plaintiff." The negligence charged in the second paragraph is "that the defendant, George Kelleher, was driving said Stutz in a careless and negligent and unlawful manner in this: that when he saw or could and should have seen said Chevrolet entering said intersection in the manner aforesaid, said defendant was unable to and negligently and carelessly failed to bring said Stutz under control and to stop or turn the same in time to avoid striking said Chevrolet, but carelessly and negligently ran into and upon said Chevrolet in the manner aforesaid, by reason of which facts each of said defendants was negligent, which negligence proximately resulted in the injuries to the plaintiff as hereinafter alleged, all without fault on the part of the plaintiff." In the third paragraph it is charged "that the defendants, and each of them were careless and negligent in this: That they each negligently failed to see said Chevrolet entering said intersection and defendant Kelleher carelessly and negligently failed to stop said Stutz or to reduce its speed, or to turn it out of the course of said Chevrolet so as to avoid striking said Chevrolet, but carelessly drove and propelled said Stutz into and upon said Chevrolet with great speed and force in the manner aforesaid, by reason of which facts each of said defendants was negligent, which negligence proximately caused injuries to the plaintiff as hereinafter alleged, without any fault on the part of the plaintiff."

Under the assignment of error appellants present:

(1) That the verdict of the jury is not sustained by sufficient evidence;

(2) That the verdict is contrary to law;

(3) Error in overruling separate motions of appellant Jones and appellant Virgils for a directed verdict;

(4) Error in refusing to give to the jury the peremptory instructions separately requested by appellants Jones and Virgils;

(5) Error in giving to the jury the court's instruction number 20;

(6) That the damages assessed by the jury are excessive.

Under specifications (1) and (2) the appellants contend that the appellee was guilty of contributory negligence as a matter of law.

The evidence discloses that on the morning of June 19, 1938, at approximately six thirty o'clock, appellants, with Kelleher driving, were proceeding north on Calumet Avenue in the city of Hammond, said avenue being a preferential street designated as such by an ordinance of said city. Calumet Avenue was a four lane highway with a double set of street car tracks occupying the center thereof. The outer lanes of said avenue were paved with concrete and the inner lanes with asphalt. Said avenue is intersected at right angles with the highway known as 116th Street. About the same time that the appellants were traveling north on Calumet Avenue the appellee was traveling west upon 116th Street with the intention of making a left turn on Calumet Avenue. Pertinent to the issue here involved there were no obstructions to the appellee's view of vehicles approaching from the south for a distance of not less than seven hundred feet, with the same advantage accruing to the appellants as to travelers approaching Calumet Avenue from the east on 116th Street. Appellee testifies that he stopped at 116th Street in obedience to a stop sign at the intersection and that he saw appellants approaching from the south when approximately seven hundred feet away. He said he thought he had time to enter the avenue and make his left turn. He started his car and as he entered the avenue, traveling at the rate of five miles per hour, discovered that appellants' car was approaching at a high rate of speed, and stopped his car. A collision occurred between the two cars at a time when the appellee's car was east of the east car track and while the front wheels of appellee's car were at some point upon the second lane or asphalt pavement. The appellants Jones and Virgils did not see appellee's car until within a few feet of the same. Appellant Kelleher testified that he saw appellee's car approaching from the east when both cars were approximately seventy five feet from the intersection; that he saw the stop sign for travelers on 116th Street and continued to drive at the same rate of speed; that appellee's car continued the same way too and there was a collision. Kelleher further testified that he began to look for appellee more closely when he came up to the intersection and appellee seemed to be making a left turn to get across from 116th Street and continued to travel at about the same rate of speed he had been traveling and without stopping before entering Calumet Avenue.

A city ordinance of Hammond prohibited speed in excess of thirty miles per hour on Calumet Avenue, and immediately after the accident appellant Kelleher admitted that he was driving at a speed of forty five miles per hour.

In fixing Calumet Avenue as a preferential street, the city ordinance of Hammond provides for the erection of stop signs at the intersection in question. Another section of said ordinance relating to the yielding to other vehicles provides; (c) "Yielding to Other Vehicles: The driver of any vehicle who has stopped as required by law in obedience to a stop sign at an intersection shall yield to another vehicle within the intersection or approaching so closely on the intersection as to constitute an immediate hazard, but said driver having so yielded may proceed, and other vehicles approaching the intersection of the intersecting street shall yield to the vehicle so proceeding into or crossing the intersecting street." From the evidence it is apparent that when appellee first saw appellants' car that it was not in the intersection but several hundred feet to the south thereof. Unless appellants' car was approaching so closely to the intersection as to constitute an immediate hazard the appellee in the exercise of reasonable care had a right to enter said intersection, and in which event it was the duty of the appellants to yield the right of way. The appellants' car was coming almost directly toward the appellee, and when the same was several hundred feet away the speed of the approaching car was difficult to judge. It was only when appellee was in the intersection and the appellants' car was in close proximity that he could have a fairly accurate notion of how rapidly appellants' car was approaching said intersection. Until appellee had notice to the contrary he had a right to assume that the appellants were traveling at a lawful rate of speed and not in violation of the city ordinance fixing the rate of speed at thirty miles per hour on Calumet Avenue and along which avenue there were signs notifying travelers of the rate of speed permissible. Kraning v. Bloxson, Administratrix, 103 Ind.App. 660, 5 N.E.2d 649, 9 N.E.2d 107. In the case of Martin v. Kiefer, Mo. App., 95 S.W.2d 1214, 1219, in which the litigants were involved in an intersection accident, and the plaintiff approaching the intersection from the right saw defendant's car three hundred feet away the court said: "* * * Plaintiff was not required to anticipate that defendant would drive his car in such reckless and unlawful manner. It was natural and to be expected that he would proceed across the intersection, and defendant had no right to assume that he was aware of...