Keeshin Motor Express Co. v. Glassman

• Decision Date: 21 January 1942
• Docket Number: 27628.
• Citation: 38 N.E.2d 847,219 Ind. 538
• Parties: KEESHIN MOTOR EXPRESS CO., Inc., et al. v. GLASSMAN.
• Court: Indiana Supreme Court

38 N.E.2d 847

219 Ind. 538

KEESHIN MOTOR EXPRESS CO., Inc., et al. v. GLASSMAN.

No. 27628.

Supreme Court of Indiana

January 21, 1942

Walter C. Williams and Neville V. Williams, both of Michigan City Oscar B.

Smith of Knox, and Frederick H. Krueger, of Michigan City, for appellants.

Robert H. Moore, of Gary, Orville W. Nichols, of Knox, and James P Gleason, of Michigan City, for appellee.

RICHMAN Judge.

Appellee Lloyd Glassman, a minor, recovered judgment on a verdict for $4,000 for personal injuries sustained when a Ford coupe with rumble seat in which he was riding collided with appellants' truck on U. S. Highway 35 (also called Yellow River Road) where it was intersected by Johnson Road in the open country northwest of LaPorte, Indiana. The court overruled appellants' motion for a new trial which asserted, beside other alleged errors some of which are hereafter noticed, that certain instructions were erroneously given. Error is assigned on this ruling. Appellee says that neither the evidence nor the instructions are in the record.

Typewritten transcript stating that it 'contains all the evidence given in said cause, with the objections thereto, rulings of the Court on such objections, and the exceptions to such rulings,' was tendered to and signed by the Judge within the time limited. Over his signature is the statement: 'The Court having examined the foregoing bill of exceptions containing the evidence, hereby approves the same, and orders said bill to be filed of record.' Then follows a certificate of the clerk that appellants 'filed in my office, as such clerk, the above and foregoing original longhand manuscript of the evidence given in said cause, as taken down and certified by Don N. Laramore, Official Reporter of said Court. Witness my hand and the seal of said court this 5th day of April, 1939. Said transcript was filed after the same was signed by the court. Fred R. Hinz, Clerk Starke Circuit Court.'

This was a sufficient compliance with § 2-3111, Burns' 1933, § 456, Baldwin's 1934. The signature of the judge made of the reporter's transcript a bill of exceptions. That the clerk in his certificate called it the reporter's 'longhand manuscript' does not destroy its status. If it had lacked the judge's signature, it would not have been a bill of exceptions even though so designated by the clerk.

The record shows an order book entry reading: 'All instructions given by the court of its own motion and all instructions tendered by both the plaintiff and defendants are now ordered filed and made a part of the record, which is now done, to-wit:' then immediately follows transcript of the instructions. Appellee, citing Board of Com'rs v. Gibson, 1902, 158 Ind. 471, 63 N.E. 982, and 2 Watson's Works Practice, § 1811, says that the entry was not sufficient for lack of 'a motion by one of the parties for an order of court making instructions part of the record.' The case cited did not go on that ground and the textbook citation was applicable to a former statute and not to § 2-2010, Burns' 1933, § 343, Baldwin's 1934, which was in force when this cause was tried. The instructions are in the record.

In this connection it appears that after the trial and before the appeal, the instructions tendered by appellants without fault of either party were lost by the clerk. Appellants' office copies not being available, the court by order substituted copies of copies obtained from appellee. Appellants assert that this is ground for a new trial with which we cannot agree. Appellants complain also that the substituted instructions are not true, but they do not point out the alleged inaccuracies. The trial judge necessarily had to read all of the tendered instructions in order to determine which should be given. We may assume that he was sufficiently familiar therewith to be satisfied as to the accuracy of the copies. His ruling ought not be disturbed.

The negligence charged in the complaint was that while the coupe 'was upon the intersection' of the two highways the driver 'did carelessly and negligently drive said truck at a high and dangerous rate of speed, towit: Forty-five (45) miles per hour, and did carelessly and negligently drive said truck around the curve of the said Yellow River Road south of the curve of aforesaid intersection and in a northerly direction on said Yellow River Road at aforesaid high and dangerous rate of speed and out and upon the intersection which automobile in which plaintiff was riding as aforesaid: that said defendant did carelessly and negligently drive said truck out upon said intersection without giving any warning sign of its approach, without sounding any horn and did there and then carelessly and negligently fail to slacken the speed of said truck as it approached aforesaid intersection, but did carelessly without sounding any horn or giving any warning whatsoever of its approach carelessly and negligently drive said truck on said intersection at the high and dangerous rate of speed aforesaid over and upon the automobile in which' appellee was riding.

The sufficiency of the complaint was not challenged. When the accident occurred it was not negligence per se to drive on a preferential highway in the country at the rate of 45 miles per hour nor, where the driver's view was unobstructed, was it negligence per se to fail to sound a horn to warn the occupants of a car approaching from the left. Section 47-513, Burns' 1933, 11166, Baldwin's 1934, is not applicable. So the negligence, if any, in this case under the theory of the complaint must be predicated upon the failure of the truck driver to exercise due care after the coupe had entered the intersection and collision was imminent.

This briefly is the factual situation: Appellants' truck was proceeding northward on a straight concrete highway which the jury found was preferential. Five boys, including a sixteen year old driver, in a Ford coupe with rumble seat which he owned, were going to a county fair, in the daytime, and entered this highway from the west. The drivers had uninterrupted view of each other's vehicles, as the jury in substance found in answer to an interrogatory. The boys were either inattentive or misjudging the speed of the truck thought they could beat it across the intersection. The truck driver was either inattentive or assumed that the other car would not enter and did not have his truck under such control that he could avoid the collision after he saw the coupe enter the intersection. Their versions of what actually occurred were conflicting. For instance, testimony as to the speed of the truck varied from twenty to sixty miles per hour. It weighed with load 20,000 pounds and stopped within thirty feet of the place of impact which is not consistent with a speed of sixty miles per hour.

The ultimate issues were of course the negligence of the truck driver and freedom from contributory negligence of appellee who was riding in the left side of the rumble seat. But these issues were necessarily connected with and no doubt confused by the fact that the conduct of appellee's brother, who was driving the coupe, was such as would have justified the jury in finding that he was negligent and that his negligence was the sole proximate cause of the collision.

With this situation it was incumbent upon the trial court in his instructions to clarify the issues without giving any of them undue prominence. This was not done. The instructions as a whole are lengthy, intricate, repetitious, argumentative and confusing. They tend, to appellants' disadvantage, by needless repetition to draw the jury's consideration away from the conduct of appellee's brother and to lead the jury to believe that, in the court's opinion, what he did or failed to do was of little consequence.

While appellants rely on error in giving each of fourteen instructions, the specific reasons assigned for the most part are either captious or entirely inapplicable and they entirely overlook valid objection to at least one erroneous instruction although it is criticized on other grounds. But they sufficiently assign as error that six of the instructions by repetition unduly emphasize the fact that to appellee may not be imputed the negligence of his brother. We are of the opinion that this error, coupled with error in giving the sixteenth, which is one of the six instructions on imputed negligence, requires that the judgment be reversed.

We are not unmindful of the desirability of brief opinions but we believe that our holding in this case can not be made clear without a review of all the instructions and quotation of the six above mentioned. In view of the necessity for a new trial, in such review we shall notice defects that may be avoided when another jury is instructed.

By instruction No. 1 the court read to the jury the entire complaint including the caption thereof and the prayer for $20,000 damages. This was not error, but the practice is not to be commended. Blair-Baker Horse Co. v. First Nat Bank, 1905, 164 Ind. 77, 84, 72 N.E. 1027. The second instruction quoted the 'next friend' statute and with unnecessary elaboration explained why the action was brought by a next friend. No. 3 stated that the burden was on the appellee to prove the material allegations of the complaint, that is, that the collision was caused by the negligence of appellants in operating their truck. There is no mention of the specific charges of negligence in the complaint, nor any attempt to confine the jury to those charges. Only in the most general terms is the issue of negligence presented. No. 4 defines 'PREPONDERANCE,' NO. 5 CONTRIBUTORY NEGLIGence, no. 6 the jurY's function in determining the weight of the evidence. No. 7 defines negligence and, for the second...