Kirsch v. Harker, 17880

• Citation: 120 Ind.App. 66,89 N.E.2d 924
• Decision Date: 06 February 1950
• Docket Number: No. 17880,17880
• Parties: KIRSCH v. HARKER.
• Court: Court of Appeals of Indiana

Page 924

89 N.E.2d 924

120 Ind.App. 66

KIRSCH v. HARKER.

No. 17880.

Appellate Court of Indiana, in Banc.

Feb. 6, 1950.

Charles Davis, Mishawaka, for appellant.

Leo Van Tilbury, Mishawaka, George Sands, South Bend, for appellee.

BOWEN, Judge.

Appellant filed an action in the lower court for personal injuries allegedly suffered by her while she was riding in appellee's automobile as his guest. Appellee filed a demurrer to appellant's amended complaint which the court sustained, appellant refused to plead further, and the court entered judgment for appellee and against appellant.

The sole error assigned for reversal is the action of the court in sustaining appellee's demurrer to appellant's amended complaint.

Appellant's amended complaint, in substance, alleged the existence of an ordinance of the City of Mishawaka, Indiana, requiring motorists to stop before entering a street intersection marked with a 'Stop' sign; that a stop sign in accordance with said ordinance had been erected on the south side of Broadway Street where the same intersects Division Street in said city; that said Broadway Street runs east and west where the same intersects said Division Street; and that said Division Street runs north and south where the same intersects said Broadway Street; that there is a slight jog in Broadway at said intersection, so that the south line of the same, where it continues eastwardly from the east side of Division Street, is approximately thirty feet north of the place where such south line intersects the west line of Division Street, and that it is necessary for one going east through said intersection to go in a northeasterly direction; that immediately in front of the traffic approaching Division Street from the west on Broadway and on the east side of Division Street, approximately forty-two feet from the west curb line of Division Street, is located a large tree, and immediately to the west and not more than fifteen feet distance therefrom is a two-story dwelling house; that said tree and house was in plain view of all persons approaching Division Street on Broadway from the west, and that if one entered Division Street from the west and continued due eastwardly, he would run into said tree, and should he drive to one side of the tree he would run into said dwelling house; that on the day in question the appellee was operating his automobile east on said Broadway Street, and that appellant was riding in appellee's automobile as his guest; that appellee was guilty of wanton and wilful misconduct in this; that he disregarded and failed to observe said ordinance and such stop sign, and failed to slow down or bring his automobile to a stop before entering said intersection, and he failed to operate and drive his automobile in a northeastwardly direction through said intersection, and although said tree on the east side of Division Street was plainly visible to him, the appellee with a conscious indifference to the consequences, drove and operated his said automobile into and against said tree on the east side of Division Street, and thereby caused plaintiff to suffer the injuries complained of, as a direct result of the alleged wanton and wilful misconduct to her damage.

The grounds set forth in appellee's demurrer are that the facts averred in appellant's amended complaint are insufficient in law to constitute a cause of action. In the memorandum attached to the demurrer, the appellee claims that the facts alleged do not amount to or constitute 'wanton or wilful misconduct' within the meaning of the so-called 'guest' statute, § 47-1021, Burns' Stat.1940 Repl., and that the facts averred simply charge defendant with negligence in failing to obey the stop sign and in failing to...