Koplovitz v. Jensen
| Decision Date | 02 April 1926 |
| Docket Number | 24,193 |
| Parties | Koplovitz v. Jensen |
| Court | Indiana Supreme Court |
1. AUTOMOBILES.---Provision of automobile law requiring motor vehicles "operated or driven" upon a public highway at night held to apply to automobiles temporarily left standing in a highway, as well as to moving vehicles.---The section of the automobile law requiring all motor vehicles while "operated or driven" upon a public highway at night, to display a red light visible from the rear, was held to apply to automobiles temporarily left standing in a highway, or parked upon the traveled portion thereof, as well as to moving vehicles. p. 484.
2. APPEAL.---Constitutionality of statute held sufficiently raised where an instruction based on the statute was objected to on "ground of unconstitutionally of the statute and the 'giving' of the instruction was assigned as a reason for new trial on that ground.---Where an instruction based on a statute was objected to on the ground that the statute was unconstitutional and was assigned as one of the reasons for a new trial on that ground, the question of the constitutionality of the statute was sufficiently raised though no objection was made to the evidence on that ground p. 485.
3. CONSTITUTIONAL LAW.---Every presumption will be indulged in favor of the validity of legislative action in determining constitutionality of a statute.---It is an elementary rule that, in determining the constitutionality of a statute, every presumption will be indulged in favor of the validity of legislative action. p. 486.
4. CONSTITUTIONAL LAW.---Legislature may enact reasonable police regulation to promote the health, comfort, safety and welfare of society.---The legislature may enact reasonable police regulations to promote the health, comfort, safety and welfare of society, even though such enactments may invade the right of liberty or property of some individuals. p. 486.
5. CONSTITUTIONAL LAW.---Necessity for legislation in nature of police regulations is entirely for the legislature, and the question whether it acted wisely in enactment of statute is no concern of courts.---The necessity for legislation in the nature of police regulations is a matter entirely for the legislature, and the question of whether it acted wisely in the enactment of such a statute is no concern of the courts p. 487.
6. CONSTITUTIONAL LAW.---Action of legislature in selecting motor vehicles as a subject of legislation, and subjecting them as a class to certain regulations while being operated over the public highways, held not unconstitutional.---The action of the legislature in selecting motor vehicles as a subject of legislation and in subjecting them as a class to certain regulations while being operated upon the highways of the state was a lawful and proper regulation of the use of property and, therefore, not in conflict with either the state or federal constitution. p. 488.
7. AUTOMOBILES.---Section of automobile law requiring red light on rear of motor vehicle "operated" over a public highway in the nighttime, though construed as applying to such vehicles while parked on a highway, held not arbitrary or unreasonable classification or special law so as to bring it into conflict with state or federal constitution.---The section of the automobile law relating to lights on motor vehicles, and requiring that any such vehicle "operated" over a public highway at night must display a red light visible from the rear thereof, though construed as applicable to such vehicles while parked on a highway, is held not to be an arbitrary or unreasonable classification so as to bring it into conflict with Art. 1, 21 of the state Constitution or 1 of the Fourteenth Amendment to the federal Constitution, and not special within Art. 4, 22, 23 of the state Constitution. p. 488.
8. AUTOMOBILES.---Contributory negligence of driver of automobile in collision with truck standing in highway without tail light was properly submitted to jury.---In an action for damages to an automobile by striking a truck standing in a highway at night without a tail light, the question of contributory negligence of the driver of the car, who dimmed his lights on meeting another car and turned his bright lights on immediately afterward, in compliance with the statute, was properly submitted to the jury. p. 488.
9. NEGLIGENCE.---Plaintiff must prove his freedom from contributory negligence m action for negligent injury to property.---In an action for damage to property resulting from the negligence of the defendant, the plaintiff must prove his freedom from contributory negligence. p. 490.
10. APPEAL.---Appellate tribunal must accept jury's decision on question of contributory negligence, as it cannot weigh the evidence and determine correctness of verdict.---An appellate tribunal must accept the decision of the jury on the question of contributory negligence, as it cannot weigh the evidence and determine the correctness of the verdict. p. 490.
11. TRIAL.---Refusal of instructions fully covered by those 'given by the court on its own motion not error.---There is no error in refusing instructions fully covered by those given by the court on its own motion. p. 490.
From the Lake Superior Court; Maurice E. Crites, Judge.
Action by Arthur R. Jensen against Ben Koplovitz. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Bomberger, Peters & Morthland, for appellant.
William J. Whinery and Henry B. Snyder, for appellee.
Appellee brought this action against appellant to recover damages on account of injuries to his automobile resulting from a collision with appellant's truck alleged to have been caused by appellant's alleged failure and neglect to display a red light on the rear of his truck. A complaint in one paragraph answered by a general denial, formed the issues submitted to a jury which returned a verdict in favor of appellee for $ 750. Judgment on the verdict.
On appeal to this court appellant has assigned as error the overruling of his motion for a new trial wherein he asserts that the verdict is contrary to law and not sustained by sufficient evidence; that the court erred in its instructions to the jury, and in refusing to give appellant's requested instructions.
Appellee's complaint, in substance, charges that while he was lawfully and carefully driving his automobile over and along a certain named public highway at about 11:45 p.m. of a certain day, and more than one-half hour after sunset and more than one-half hour before sunrise of the following day, appellant, the owner of an automobile truck, then and there operating it upon the same highway in the direction in which appellee was driving, did then and there negligently, carelessly and unlawfully fail to display on the rear of such truck a red light or any light whatsoever visible from the rear thereof, by reason whereof, and solely because of such careless, negligent and unlawful conduct of appellant, and without any fault or negligence on the part of appellee, the automobile collided with appellant's truck then and there by him permitted to stand on the highway mentioned, whereby the injury, of which complaint is made, resulted, and for which $ 1,000 is demanded.
The record at bar affirmatively shows that appellee relied, and the case was tried upon the theory that at the time of the alleged collision a statute of this state required that all motor vehicles operated or driven upon any public highway of this state must be equipped with a visible red light on the rear thereof, and that a violation of this provision constituted negligence.
While appellant in his brief refers to § 13, Acts 1913 p. 779 as the section of the act relied on by appellee, yet we are inclined to believe from the record before us that § 13 as amended by the legislature in 1919 was intended. Acts 1919 p. 700. While the latter enactment did not expressly repeal § 13, it re-enacted it in toto with a proviso added, and hence the original section was repealed by implication. The amended section was therefore in force when the accident and injury occurred for which appellee seeks redress.
Appellant first insists that the provision of the statute, that, "Every motor vehicle or motor bicycle operated or driven upon any public highway in this state * * * shall, during the period from one-half (1/2) hour after sunset to one-half (1/2) hour before sunrise, display at least two (2) lighted lamps on the front and one (1) on the rear of such motor vehicle, which shall display a red light visible from the rear," must be construed as a regulation of such vehicles only when the same are in motion. In support of this contention he refers us to the evidence which conclusively shows that the injury to appellee's automobile was the result of a collision with appellant's truck while it was at rest.
On this point, it may be well that we refer to the evidence, which in substance, shows that appellant at the time of the alleged accident resided and was engaged in the fruit business at Gary, Indiana. He was the owner of a two-ton capacity stake body truck in which, with a driver, he left Gary at about ten o'clock at night, and while on the Ridge road between Gary and Highland he stopped the truck, alighted, walked across the road to a farm house about two or three rods away, and while there talking to some one, appellee, driving a Chalmers touring car at a speed of twenty miles an hour in the same direction that the truck was headed, collided with the left rear corner of the truck body, breaking the windshield, tearing off the top and a portion of the right-hand side of the body of the automobile, and otherwise damaging it. The truck, immediately preceding the accident, had been...
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