Kanuch v. Prentiss

• Decision Date: 31 January 1929
• Docket Number: 13,247
• Parties: KANUCH ET AL. v. PRENTISS
• Court: Indiana Appellate Court

164 N.E. 708

89 Ind.App. 358

KANUCH ET AL. v. PRENTISS

No. 13,247

Court of Appeals of Indiana

January 31, 1929

Rehearing denied May 16, 1929.

From Lake Circuit Court; E. Miles Norton, Judge.

Action by James T. Prentiss against John J. Kanuch and another. From a judgment for plaintiff, the defendants appealed.

Affirmed.

Kelly & Ryan, for appellants.

Oscar B. Thiel, for appellee.

OPINION

LOCKYEAR, J.

This action was instituted in the Lake Circuit Court by the appellee, James T. Prentiss, as plaintiff, to recover damages against the appellants, John J. Kanuch and Stephen Kanuch. Damages were claimed by the appellee by reason of the alleged wrongful death of his son in an automobile accident in the city of Gary, Indiana, in which accident, the latter was struck by the delivery truck of the appellants. The appellee predicated his complaint on the alleged negligence of the appellants in the operation of said vehicle.

There is ample evidence to support the verdict of the jury in finding that the appellants' truck was being driven at a speed higher than was reasonable and prudent, having regard to the traffic and the use of the way.

It is admitted that the court erred in instructing the jury that if such motor vehicle was operated in a closely-built-up business portion of the city, at a higher rate of speed than ten miles per hour, such operation was prima facie evidence of negligence on the part of the driver of such motor vehicle, also in instructing the jury that if the driver was approaching or driving upon a curve in the highway or street, or if the vision of the driver was obstructed, it was prima facie negligence to drive more than six miles per hour.

Section 10140 Burns 1926, Acts 1925 p. 570, provides: "No person shall drive or operate a motor vehicle or motor bicycle upon any public highway in the state at a speed greater than is reasonable or prudent, having regard to the width of the highway, the density of the traffic, the condition of the weather and the use of the highway, or so as to endanger life or limb, or injure the property of any person. If the rate of speed of any motor vehicle or motor bicycle, driven or operated upon any public highway of this state, where such highway passes through the closely built up business portion of any city, town or village, exceeds fifteen miles per hour, . . . such rate of speed shall be prima facie evidence that the person driving or operating such motor vehicle or motor bicycle is running at a rate of speed which is greater than is reasonable and prudent," etc.

It...