Kempf v. Himsel, 18049

• Decision Date: 13 April 1951
• Docket Number: No. 18049,18049
• Citation: 98 N.E.2d 200,121 Ind.App. 488
• Parties: KEMPF v. HIMSEL.
• Court: Indiana Appellate Court

Page 200

98 N.E.2d 200

121 Ind.App. 488

KEMPF v. HIMSEL.

No. 18049.

Appellate Court of Indiana, in Banc.

April 13, 1951.

Emison & Emison, Vincennes, William F. Dudine, Jasper, Gray & Waddle, Petersburg, for appellant.

Shake & Shake, Vincennes, Horace M. Kean, Jasper, Hastings, Allen & Hastings, Washington, for appellee.

MARTIN, Judge.

This is an appeal from a judgment in favor of the appellee in an action by the administrator for damages for the alleged wrongful death of Edward J. Himsel, said wrongful death being the result of the alleged negligence of the appellant.

The cause was tried by a jury on the issues formed by the appellee's complaint and the appellant's answer. The jury returned a verdict in favor of the appellee and against the appellant, awarding damages in the amount of $10,000.00 to the appellee.

The error assigned for reversed is that the court erred in overruling appellant's motion for a new trial.

The grounds and reasons assigned in appellant's motion for a new trial are that the court erred in refusing to direct the jury to return a verdict for the appellant in this case, at the conclusion of appellee's evidence. The appellant requested the court, at the conclusion of all of the evidence, to instruct the jury to return a verdict for the appellant in this case, the court refusing to give this instruction and overruling the appellant's motion for a directed verdict.

The appellant also assigned as a ground for a new trial that the verdict of the jury is not sustained by sufficient evidence and that the verdict of the jury is contrary to law.

In addition to these reasons and grounds contained in the motion for a new trial, and not waived by the appellant's brief, are the alleged errors of the trial court in refusing to give appellant's tendered instructions 1, 2, 4, 5, 6, 8, 10, 11 and 12.

The following acts of negligence were alleged in appellee's complaint:

'That the aforesaid careless and negligent acts, and each of them, of the defendant herein, were as follows, to-wit:

'(a) That the said motor vehicle was driven and operated at said time and place at a speed which was greater that was reasonable and prudent, taking into consideration the present and potential hazards then and there existing, to-wit: the width of the highway, which was but about 20 feet, the number of persons using the said highway at that place and at that time, the curve in the said highway at that place, and at a speed which was dangerous to life and limb of persons using said highway, including plaintiff's decedent, said speed being 55 miles per hour.

'(c) That the said defendant failed and neglected to maintain sufficient control over his said motor vehicle and keep said motor vehicle on his right side of the said highway at that time and place, and did permit his said motor vehicle to cross to his left side of the said highway and to run off the paved portion of the said highway on his left side and onto the berm on the left side of the said highway at the place then occupied by this plaintiff's decedent, as aforesaid.'

The appellant contends that the court erred in overruling its motion for a directed verdict, at the conclusion of plaintiff's evidence and after the plaintiff rested, and that the court erred in refusing to give to the jury defendant's peremptory instruction I, at the conclusion of plaintiff's evidence and after the plaintiff had rested.

By the verdict the jury found that the appellant was negligent, which was the proximate cause of the death of the decedent. The appellant contends 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 therefrom 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, 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, supra; Northwestern Transit v. Wagner, 1945, 223 Ind. 447, 61 N.E.2d 591; Dieckman v. Louisville & I. 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, 46 N.E.2d 262; Cleveland, C., C. & S. 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, supra.

On appeal, when the sufficiency of the evidence is questioned, we do not weigh the evidence, but we examine the record to see if there is any evidence, or any reasonable or logical inference which may be drawn from the evidence, which if believed by the jury would sustain the verdict. Gamble v. Lewis, supra; Butterfield v. Trittipo, 1879, 67 Ind. 338, 342; Indiana Ins. Co. v. Handlon, supra.

The record, when considered most favorable to the appellee and with reasonable inference against the appellant, discloses that on December 24, 1946, State Road 56 ran from Jasper, Indiana, through the edge of Haysville, Indiana, and on to French Lick, Indiana. It ran generally north from Jasper, curved to the east as it approached the south edge of Haysville, so that Haysville was on the northwest of the curve, as the road turned from the north to east and on the French Lick. At that point State Road 56 was paved and was 19 feet 2 inches in width.

A blacktop road 18 feet in width running in a generally east and west direction and leading into Haysville intersected with State Road 56 so as to form a Y. The north prong of the Y, for one approaching the intersection on State Road 56 from the east, was the blacktop road going straight ahead into Haysville, and the south prong of the Y was Road 56 as it curved to the south and on to Jasper. East of the intersection to State Road 56 and the blacktop road, and on the north side of the State Road was located the parsonage of Christ's Evangelical Lutheran Church. Immediately east of the parsonage and on the same side of the State Road was the church itself. Immediately east of the church and on the same north side of the State Road was the church cemetery.

Between the intersection of the two roads and the parsonage, at a point 207 feet east of the intersection of the two roads and 134 feet west of the line dividing the church and the parsonage, was a concrete culvert over an open ditch running along the north side of the State Highway. The culvert was 11 feet 6 inches from the north edge of the pavement of the State Road and the bottom of the open ditch at the culvert was 2 feet 7 inches below the level of the Highway.

On the south side of the pavement, opposite the culvert, was a brick building then occupied by the Meyer Body Company.

Mrs. Margaret Himsel, mother of the decedent, lived on the north side of the black-top road leading into Haysville, approximately 264 feet west of the point where that road entered State Road 56 and 471 feet west of the concrete culvert along the north side of State Road 56 above referred to.

On the 24th day of December, 1946, the decedent, Edward J. Himsel, left his farm home located about three miles southeast of Haysville, Indiana, about 5:00 or 5:30 p. m., accompanied by his wife, his daughter and his two sons. They drove to Christ's Evangelical Lutheran Church, located at the east edge of Haysville, Indiana. His wife and daughter got out of the car and went to the church where there was to be a children's program about 6:30 that evening. The decedent, with his two sons, went to the home of the decedent's mother, Margaret Himsel, to visit until time for the church service to start.

At about 6:12 p. m., that evening, the decedent left his mother's home alone to go to the church. At the time, he was 52 years of age, was 5 feet 10 inches tall, weighed 215 pounds, and was in good health. As he left his mother's home, he was smoking his pipe, had his glasses with him, and the coat he wore was not stained or torn. At the time it was completely dark and gloomy and had previously been raining.

The decedent did not appear at the church for the services, and after the church services were over the decedent's two sons searched for him in Haysville and about the church properties twice. Finally, about 9:00 p. m., the two sons found the body in the open ditch by the concrete culvert along State Road 56. The decedent's head and face were against the culvert head, stomach down, and the rest of the body was stretched out in the ditch. There was blood all over the decedent, on the ground and on the culvert. His skull was fractured, which had caused his death....