Kuhn v. Stephenson

• Decision Date: 07 March 1928
• Docket Number: No. 13044.,13044.
• Citation: 161 N.E. 384,87 Ind.App. 157
• Court: Indiana Appellate Court
• Parties: KUHN v. STEPHENSON.

87 Ind.App. 157

161 N.E. 384

KUHN

v.STEPHENSON.

No. 13044.

Appellate Court of Indiana, in Banc.

March 7, 1928.

Appeal from Hamilton Circuit Court; Fred E. Hines, Judge.

Action by Charles Kuhn against John Stephenson. Judgment for defendant, and plaintiff appeals. Affirmed.

L. Ert Slack, of Indianapolis, for appellee.

REMY, C. J.

While Charles Kuhn was operating his automobile going south on a paved public highway, he was overtaken by another automobile operated by John Stephenson. The latter desiring to go faster than Kuhn, speeded his automobile around to the left and to a point a short distance ahead of the car operated by Kuhn, at which point it collided with an automobile coming from the south, and which was being operated by James Riley. The collision caused the Riley car to veer to the west, in front of, and into collision with the Kuhn car, as a result of which Kuhn sustained personal injuries, as well as damages to his automobile. To recover the damages sustained, Kuhn commenced this action against Stephenson. The theory of the complaint is that Stephenson, as he approached Kuhn's car from the rear, saw the Riley car approaching from the south, and, well knowing that there would be danger of a collision if he endeavored to pass at that time, he nevertheless proceeded to go around at a dangerously high rate of speed, and that his negligence in so doing was the sole proximate cause of the damages of which complaint is made; it being specifically averred in the complaint that Riley, in the operation of his car, was free from negligence. The complaint is not drawn under section 38 of the Act of 1925 (chapter 213), regulating the use and operation of motor vehicles on public highways; it not being alleged that the car approaching from the south was within 500 feet of appellee at the time appellee attempted to pass appellant's car. The complaint was answered by denial, and a trial resulted in a verdict and judgment for appellee.

[1] It appears from the evidence that, a short time before the accident, Riley with his automobile entered upon the highway at a point about one mile south of the place where the accident occurred. The speed at which Riley was driving at the time and place of the accident was variously estimated by the witnesses. One witness for appellee testified that he was present when Riley entered upon the highway, and saw the car start north toward the scene of the accident; that, it being nighttime, witness was able to see the car only a short distance up the road, but he listened to the motor until the car had traveled a quarter of a mile. Witness was then permitted, over appellant's objection, to testify that in his opinion, “from the sound of the motor,” the car was going at that time at the rate of 45 miles an hour. The objection interposed to the question at the time it was propounded was that the mere sound of the motor was an insufficient basis for an opinion as to the speed at which the automobile was going, and that objection is the only one presented to this court by appellant in his brief. It appears that, before the question was propounded, the witness had testified that he had had 12 years' experience as an automobile mechanic, and that from his experience he “could determine something in the neighborhood of the speed of an automobile of that make by listening to the sound of the engine...