Kelley v. Dickerson
| Decision Date | 14 March 1938 |
| Docket Number | 26984. |
| Parties | KELLEY v. DICKERSON. |
| Court | Indiana Supreme Court |
Appeal from Tipton Circuit Court; Frank B. Russell, Judge.
Harker & Irwin, of Frankfort (Kemp, Kemp & Bolton, of Tipton, of counsel), for appellant.
Thos M. Ryan, of Frankfort, and Cleon W. Mount, of Tipton, for appellee.
This is an action by the appellee against the appellant to recover damages for personal injuries alleged to have been sustained on account of the appellant's negligent operation of an automobile. It is alleged in the complaint, consisting of two paragraphs, that about 7:30 o'clock on the morning of April 17, 1934, the appellee and another person were traveling north in a Ford automobile on State Highway No. 39, and were approaching a grade crossing of the Monon Railroad; that the railroad extended from the southeast to the northwest; that a highway known as the Kelley Gravel Road, east of road No. 39, paralleled the railroad track and terminated at its intersection with road No. 39 approximately 60 feet north of the railroad crossing; that at a distance of 250 feet east of road No. 39, the Kelley Road extended directly east. State Road No. 39 is a preferential road and the Kelley Road is not. Appellant approached the state road in a Dodge automobile and drove onto the traveled portion of road No. 39 without stopping his car, and without any warning negligently and carelessly attempted to turn to the left, or south, on the state road. The appellee did not know that the appellant was intending to turn to the south until he had driven onto the roadway, but believed appellant intended to stop before entering upon the traveled portion of road No. 39. Appellant, in disregard of the rights of the appellee and without looking for the approach of vehicles on the state highway, drove into and against the automobile in which appellee was riding and turned it over, by reason of which the appellee was thrown from the car and seriously and permanently injured.
An answer in general denial was filed to this complaint. The cause was tried by a jury, which returned a general verdict for the appellee in the sum of $3,500, together with answers to special interrogatories. Appellant's motion for a new trial was overruled. This ruling is assigned as error.
The first proposition discussed by appellant is based upon the alleged error that the verdict is not sustained by sufficient evidence and is contrary to law. Under this assignment the appellant asserts that the evidence affirmatively shows that appellee and his driver were engaged in a common enterprise, and were guilty of contributory negligence. Several propositions on this subject are discussed in the able briefs of both parties. The appellant insists that the driver of the automobile in which appellee was riding was guilty of contributory negligence, which was imputed to appellee because they were engaged in a joint enterprise.
Generally speaking, joint enterprise depends upon the facts in each particular case. The facts established by the evidence are: The appellee and his driver were driving north on a preferential road in the daytime. This road was intersected by the Monon Railroad. The Kelley Road, nonpreferential, entered the state highway from the east, but at the point of entrance extended in a northwest direction. The appellant did not see the Ford automobile approaching until it was within 15 feet of the railroad crossing, when he was making a left turn onto the traveled portion of road No. 39. Appellant stated that, as he was driving onto road No. 39, he was 'watching mighty close' for trains each way; that he was casting his glance back and forth watching the railroad track, and did not see the Ford car until just as it was coming upon the railroad crossing, at which time he was just beginning to swing south. The front wheels of appellant's car were about 10 or 15 feet north of the railroad tracks, and about 6 feet from the west edge of the pavement, and his car was headed towards the southwest. The evidence shows the width of the traveled portion of road No. 39 to be 22 feet. The center of the Kelley Road is 60 feet north of the railroad tracks. According to appellant's version, he must have been near the center of the traveled portion of road No. 39. The appellee testified that appellant drove onto road No. 39 without giving any warning whatever, and that there was not sufficient room for the Ford car, in which appellee was riding, to pass between the appellant's car and the east side of the roadway. The evidence further shows that the front bumper was the only part injured on appellant's car. The car in which appellee was riding was turned over and considerably damaged, having been struck on the right-hand side.
In view of this testimony, the general verdict of the jury, and the answers to special interrogatories, this court cannot say on appeal that there was no evidence to support the verdict of the jury. Nor has the appellant shown evidence of contributory negligence upon the part of either appellee or the driver. Therefore the question of joint enterprise cannot be controlling. For an exhaustive study of the question, see 48 A.L.R. 1077, 63 A.L.R. 921, 80 A.L.R. 312, and 95 A.L.R. 857.
In connection with a discussion of this proposition, the appellant claims that the verdict of the jury is excessive. The physicians in charge of appellee testified that ribs were broken, and are still sensitive to pressure (at the time of trial, which was 14 months after the injury was sustained), the lung punctured, four teeth broken off and had to be extracted, injuries were extremely painful and opiates administered, number of enlargements of the ribs still exist, his posture is more stooped than before the injury, he is somewhat underweight, injuries affect his ability to do heavy work, and medical expenses were between $75 and $100, and dental expense $150. The appellee was 41 years of age, and had been employed by one concern continuously for approximately 15 years.
The general principle is well established that this court will not reverse the judgment of the trial court in refusing to grant a new trial on the ground of excessive damages, unless, at first blush, the damages assessed appear to be outrageous and excessive, and it is apparent that some improper element was taken into account by the jury in determining the amount. There is nothing in this case to justify interference by this court. The position of the appellant upon this question, as well as the first question discussed herein, is such as to ask this court to perform a task which it was the duty of the trial court to discharge in passing upon the motion for a new trial. Although there is conflict in the evidence, it is so well settled that a court of appeals cannot determine the preponderance of the evidence, for reasons which have been often stated. This court cannot be both a court of review and a trial court. The evidence in this case is not of such character as to enable the court to say that there was error of law in overruling appellant's motion for a new trial on account of insufficient evidence.
The appellant assigns error of the court in giving appellee's tendered instructions Nos. 2, 3, 8, 12, 17, and 18. The objection of appellant may be stated best by using his own language as follows:
'Joint enterprise is not agency, and is governed by the rules of partnership, and a partner is liable for the acts of another partner, not because such act is his own, but because he is liable for the act of another.'
The instructions objected to properly submit the charge of negligence to the jury, and tell the jury that the burden is upon the plaintiff to prove, by a fair preponderance of the evidence, facts necessary to establish the cause of action. In making this statement to the jury, the court, in each of the instructions, told the jury in each of the instructions, told the jury the circumstances under which the plaintiff preponderance of the evidence showed the plaintiff to be guilty of negligence contributing to his injury as the proximate cause thereof.
The appellant's objection to these instructions present the question that the court limited contributory negligence to the plaintiff only. Each of the instructions do not purport to state all of the law upon the subject discussed. The instructions do not tell the jury that 'only' the negligence of the appellee could bar the recovery. In another instruction, No. 22, tendered by appellant and read by the court to the jury, the court explicitly stated that, if it is found from the evidence that, at the time of the collision in question, the plaintiff was riding in an automobile driven by Golden Miller, and that said Miller was driving said automobile as the agent of the plaintiff, then the negligence of Miller would be imputed to the plaintiff, and the plaintiff would be chargeable therewith; that if Miller was negligent in the operation of the automobile, and such negligence proximately contributed to cause the collision, then in that event the plaintiff could not recover.
The court read to the jury appellant's tendered instruction No. 23, in which the jury was told that neither an invited guest nor an occupant engaged in a joint or common enterprise with the driver of an automobile, in which he was riding when the automobile was approaching an intersecting highway, had the right to rely...
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