Kraning v. Bloxson
| Decision Date | 19 January 1937 |
| Docket Number | 15270. |
| Citation | 5 N.E.2d 649,103 Ind.App. 660 |
| Parties | KRANING v. BLOXSON. |
| Court | Indiana Appellate Court |
Arthur Metzler, of Rochester, and Russel J. Wildman, of Peru, for appellant.
Hugh Lawrence, of Peru, and Chas. C. Campbell, of Rochester, for appellee.
The appellee recovered judgment against the appellant for damages sustained because of the death of one Homer Bloxson, as the result of an automobile collision, alleged to have occurred by reason of the negligent operation of an automobile by the appellant on Manchester avenue in the closely built up residential portion of the city of Wabash, Ind.
The issues consist of a complaint in one paragraph and an answer in general denial. The cause was tried to a jury, which returned a verdict in favor of appellee. Appellant filed a motion for a new trial, which was overruled, and he appeals assigning this action of the court as the only error for reversal.
The only causes for a new trial not waived and discussed by appellant in his brief are 2, 3, 4, 6, 7, 8, 9, 10, and 11.
Cause No. 2 for a new trial questions the sufficiency of the evidence to sustain the verdict of the jury, while in cause No. 4 for a new trial, appellant complains of the action of the trial court in its refusal to give to the jury instruction No. 1 tendered by him which was peremptory in character, instructing the jury to return a verdict for appellant. Since these two causes present substantially the same question, we will consider them together.
There was evidence before the jury from which it could find the following facts: A street known as Manchester avenue runs north and south within the corporate limits of the city of Wabash, Ind.; it is 30 feet wide from curb to curb; has an interurban street car track running along the center thereof and state highways Nos. 13, 15, and 24 are routed over it; at the location where the collision giving rise to this litigation occurred, an east and west street 30 feet wide known as Prospect street connects with Manchester avenue on the west side thereof; it does not pass across, but ends at the west curb line of Manchester avenue. There is a street light located at the intersection of these two streets and it was burning at the time in question. At about 10:30 o'clock p. m. October 27, 1929, appellee's decedent Homer Bloxson, was driving north on the east side of Manchester avenue, at a distance of about two feet from the east curb in a model T Ford automobile at a speed of about 20 miles per hour. He lived on Prospect street west of its intersection with Manchester avenue. As he approached said intersection from the south, he changed the gear of his automobile and slowed its speed down to from two to three miles per hour. When Bloxson had crossed over the center line of Prospect street extended, he turned his automobile to the left apparently with the intention of driving west on Prospect street. The headlights of his automobile were on at this time and were visible as Bloxson approached the street intersection from the south. On the same evening and at the same time, the appellant was driving south on the west side of Manchester avenue in a model A Ford roadster, approaching the same street intersection. Thelma Taggart was riding in appellant's automobile as his guest. Appellant was suffering from arthritis in his left arm and during all the time in question had this arm resting in a sling placed around his neck. As appellant approached the corporate limits of the city of Wabash, Thelma Taggart asked him how fast he was driving, and appellant replied that he was going about 60 miles per hour, whereupon she requested him to slacken the speed of his automobile, but appellant did not do so at any time, and after entering the corporate limits of the city of Wabash, continued to drive at that rate of speed. The headlights of appellant's automobile were on and were visible at the intersection of Manchester avenue and Prospect street where Bloxson turned his automobile to the left to cross Manchester avenue and drive west on Prospect street. At the time Bloxson made the turn the appellant was 250 feet north of the intersection of the two streets in close proximity to a church on the west side of the street from which the congregation was at the time departing. Appellant was then driving his automobile south on the west side of the street at a speed of from 60 to 63 miles per hour. He did not slacken the speed or change the course of his automobile as he approached the street intersection though appellant saw the headlights on Bloxson's automobile as he made the turn into Prospect street. After making the turn to the left, Bloxson continued to drive his automobile to the west across Manchester avenue at a speed of from two to three miles per hour. When the front wheels of Bloxson's automobile were about to the west curb line of Manchester avenue, the right front corner of appellant's automobile hit the right rear corner of Bloxson's automobile. As a result of this impact Bloxson's automobile was thrown in a southerly direction across Prospect street and came to a rest on its right side headed south on the curb lawn at the southwest corner of the street intersection, a distance of from 25 to 30 feet from the place of impact. Bloxson's body was thrown through the top of his automobile and came to a rest in Manchester avenue about 12 or 15 feet east of his automobile. He received injuries resulting in his death a short time thereafter. Appellant's automobile turned sideways and in that position skidded south on Manchester avenue a distance of 92 feet from the place of impact, and when it stopped was headed west, the front wheels being over the west curb line of Manchester avenue, and the automobile was resting against a telephone pole. Manchester avenue passes through a closely built up residential part of the city in each direction from the scene of the collision. The appellant said on the evening of the accident that he saw the lights on Bloxson's automobile, but that he would admit he was driving 60 miles an hour and could not stop his automobile.
It is the appellant's contention that the...
To continue reading
Request your trial