Kreuger v. Neumann

• Decision Date: 19 December 1958
• Docket Number: No. 18939,18939
• Citation: 154 N.E.2d 741,129 Ind.App. 300
• Parties: Charles L. KREUGER, Appellant, v. Samuel NEUMANN, Appellee.
• Court: Indiana Appellate Court

Page 741

154 N.E.2d 741

129 Ind.App. 300

Charles L. KREUGER, Appellant, v. Samuel NEUMANN, Appellee.

No. 18939.

Appellate Court of Indiana, In Banc.

Dec. 19, 1958.

Rehearing Denied Jan. 19, 1959.

Transfer Denied March 4, 1959.

McCray, Merrill, Clark & Craig, John H. Jennings, Evansville, for appellant.

William B. Combs (of Warren, Merrell & Combs), R. Vance Hartke, Wilbur F. Dassel, Evansville, for appellee.

BOWEN, Judge.

This is an appeal from consolidated causes of action for personal injuries and property damage filed by the appellant against appellee for damages allegedly arising out of a collision between an automobile owned and operated by appellant and an automobile owned and driven by appellee which allegedly occurred about eight miles West of the City of Evansville, Indiana.

To the complaints of appellant the appellee filed cross-complaints for personal injuries and property damage, and upon the closing of the issues the consolidated causes were tried to a jury.

The jury returned a verdict against the appellant and in favor of the appellee on his cross-complaint for property damage in the amount of $750 and against the appellant and in favor of appellee on his cross-complaint for personal injuries in the amount of $6,000, and judgments were rendered on such verdicts in such sums of $750 and $6,000 respectively, together with costs.

The appellant filed a motion for a new trial in such consolidated causes which was overruled by the trial court, and this appeal followed.

Appellant refers in his brief to assigned errors numbered two, three, four, five and six, but he has wholly failed to set out such assigned errors or even the substance thereof in such brief. By reason of Rule 2-17 of the Supreme and Appellate Courts, no error has been presented to this court as to such matters. Witte v. Witte, 1953, 123 Ind.App. 644, 113 N.E.2d 166; Griffith v. Felts, 1913, 52 Ind.App. 268, 99 N.E. 432.

Assigned error number one is that the court erred in overruling appellant's motion for a new trial. Grounds of the motion for a new trial were, (1) that the verdict of the jury is not sustained by sufficient evidence; (2) that the verdict is contrary to law; (3) that the damages assessed by the jury are excessive; and (4) error of law in the action of the court in overruling the objection of appellant and cross-defendant to a question asked one Blanche Snyder, a witness called on behalf of such cross-defendant, concerning statements made to her by the appellee following the accident, and in admitting such answers in evidence. The grounds of such objection were that it was hearsay evidence, self-serving, and that a proper foundation was not laid for such testimony. Specification number three in such motion for a new trial has been waived by a failure to support such specification by either argument or authority. Rule 2-17, Rules of the Supreme Court; Egger v. Huff, 1948, 118 Ind.App. 461, 81 N.E.2d 378; Carithers v. Carithers, 1946, 116 Ind.App. 607, 65 N.E.2d 640; Anderson v. Moise, 1945, 116 Ind.App. 240, 63 N.E.2d 303.

Specifications one and two of the motion for a new trial are not supported by authority in appellant's brief and are based on the contention that the testimony of police officer Cooper shows that appellee was guilty of contributory negligence and that therefore appellee is precluded, as a matter of law, from recovering in these actions. Such testimony involves the conclusion of appellant's counsel as to the significance of such testimony with reference to skid marks, points of impact, and debris on the highway, by which conclusion the appellant insists that the physical facts with reference to the skid marks taken in connection with the other testimony in the case establishes a situation where the only reasonable conclusion to be drawn is that the appellee was guilty of contributory negligence as a matter of law.

Counsel has presented a very ingenious argument with reference to such testimony to support the contention that appellee was guilty of contributory negligence as a matter of law. It might be well to observe that in some recent decisions, in passing upon the question of contributory negligence as a matter of law, courts have narrowly limited the possibility of factual situations which could in any event constitute contributory negligence as a matter of law, and to the point where it might be difficult to find a situation, on a basis of the comparative facts of the recorded decisions, where it could ever be said that a single inference could be drawn in any case that a course of conduct constituted contributory negligence, regardless of certain obvious physical facts and circumstances. It might be wise for our courts to take a second look with reference to the present status of the rule as to contributory negligence as a matter of law. See New York Central R. Co. v. Milhiser, 1952, 231 Ind. 180, 106 N.E.2d 453, 108 N.E.2d 57; Morrow, Inc., v. Munson, Ind.App.1958, 150 N.E.2d 256.

On the basis of the above two cases we are constrained to hold in the instant case that from the facts shown in the record we can not rule that appellee was guilty of contributory negligence as a matter of law. Furthermore, we must recognize in this case that the conclusions drawn by counsel as to the effect of certain evidence of physical facts and circumstances having to do with skid marks, position of cars, debris, etc., under the circumstances shown, cannot properly be substituted for the verdict of the jury on conflicting evidence. the ingenuity of counsel in the instant matter might have influenced the jury but we are without authority to accept such arguments in this appeal upon the present status of the law in this regard.

A more serious question has been presented in this appeal by specification number 4 in appellant's motion for a new trial. In such specification the appellant urges:

'(a) The court erred in overruling the objection of the plaintiff and cross defendant to the following question propounded by the defendant and cross complainant during the direct examination of Blanche Snyder, a witness called on behalf of the defendant and cross complainant, and in admitting the answer thereto in evidence, which question, objection, and answer, and ruling of the court thereon, are in the following words:

'Q. Will you tell the jury what you heard him say?

'By Mr. Jennings: Objection. We think it is hearsay evidence and selfserving, and they have not made the proper foundation for the testimony and I object.

'By the Court: Overruled.

'A. Mr. Neumann said, 'I thought that he was going to hit me, and I got over just as far as I could get without taking the mail boxes down,' and he said, 'I don't know what the man meant,' and that is all he said. There were others there that heard him.'

From the record it appears that immediately after the crash the witness Snyder went outside and saw the appellee on the ground and that she then went into the house to get a blanket to cover him. The evidence is not exactly clear as to whether the statement was made to Mrs. Snyder when she first reached the appellee or whether it was made after she returned with the blanket. The record in this regard is as follows:

'Q. On the night of this accident, what was the first you knew about it? A. I heard the crash.

'Q. Where were you at that time? A. In my living room.

'Q. Did you go to the scene of the accident? A. Yes, immediately.

'Q. When you got to the scene of the accident, did you see the automobiles? A. Yes.

'Q. Did you see their position on the highway? A. I did, Mr. Neumann's--I know Mr. Kreuger's was on the highway, and Mr. Neumann's was off the highway.

'Q. Did you see Mr. Kreuger at all that night? A. Yes.

'Q. And did you see Mr. Neumann? A. Yes.

'Q. Where was Mr. Neumann when you saw him? A. They were getting him out of the car.

'Q. And where did they put him? A. If I remember correctly, they put him on the ground--Maybe they laid him on the side, I don't remember for sure.

'Q. Do you recall, it was the ground? A. Yes, sir.

'Q. What did you do if anything at that time? A. I went in the house to get a blanket to cover him.

'Q. Did you talk to Mr. Neumann at all? A. Well no, I did hear him talk.

'Q. Will you tell the jury what you heard him say?

'By Mr. Jennings: Objection, we think it is hearsay evidence, and selfserving, and they have not laid the proper foundation for the testimony, and I object.

'By the Court: Overruled.

'Q. Go right ahead, Mrs. Snyder. A. Mr. Neumann said--'I saw that he was going to hit me and I got over just as far as I could get without taking the mailboxes down,' and he said, 'I don't know what the man meant,' and that is all he said. There were others there that heard him.

'Q. He wasn't addressing these remarks to you? A. No, he was just talking.

'Q. And he was lying there after the accident? A. Yes.'

The record shows that the appellee had suffered a compound comminuted fracture of the left leg just below the knee; there was a two or three inch wound on the leg just below the knee with fragments of bone sticking through the skin; he had two or three lacerations on the right leg and on the chin and in his mouth; he complained of severe pains in the chest, and he was in a lot of pain and moaning.

Appellant's assignment of error questions the admissibility of the testimony of Mrs. Snyder as to the statements made by appellee on the ground that such statements could not properly be considered a part of the res gestae and therefore come within the exception to the hearsay rule. As we approach consideration of this question we are not unmindful of the language contained in 6 Wigmore, Evidence, (3d Ed.), § 1745, p. 131, which in discussing the resgestae rule states:

'On the one hand, to repeat without comment the often meaningless and...