Lawson v. Webster, 19458

• Decision Date: 02 May 1962
• Docket Number: No. 19458,No. 2,19458,2
• Citation: 133 Ind.App. 296,181 N.E.2d 870
• Parties: Nona J. LAWSON, Carrie Deakin, Appellants, v. Ralph D. WEBSTER, Appellee
• Court: Indiana Appellate Court

Page 870

181 N.E.2d 870

133 Ind.App. 296

Nona J. LAWSON, Carrie Deakin, Appellants, v. Ralph D. WEBSTER, Appellee.

No. 19458.

Appellate Court of Indiana, Division No. 2.

May 2, 1962.

Roland Obenchain, Jr., South Bend, for appellants.

J. T. Hillis, Logansport, for appellee.

PFAFF, Judge.

Appellee's automobile was damaged in a collision with an automobile being driven by one of appellants, Nona J. Lawson, and appellee brought this action against both appellants. Appellants filed separate counter-claims against appellee. A verdict was returned by the jury for appellee on his complaint and against appellants on their counter-claims.

Appellants present as error the refusal of the court to give certain of their tendered instructions and also claim that under the evidence the appellee was guilty of contributory negligence as a matter of law.

The collision occurred at the intersection of State Highways 39 and 14, July 8, 1954, at approximately 3:00 p. m. in Pulaski County, Indiana, at a point nine miles west of Winamac, Indiana. State Highway 39 runs in a north and south direction and State Highway 14 runs in an east and west direction at this point. Appellants' automobile approached the intersection from the north on State Highway 39 and appellee approached from the east on State Highway 14, which was a preferential highway and, at the time of the accident, there was a sign located at the northwest corner of the intersection bearing the word 'STOP' in large letters, clear and visible to traffic traveling sough on State Highway 39.

The evidence is undisputed that the automobile driven by appellant, Nona J. Lawson, stopped prior to entering the intersection. Appellee himself testified that the automobile was stopped when he first saw it. Appellant's automobile then proceeded into the intersection and did not again stop. There is evidence from which the jury could have found that appellee's automobile was visible at such a distance; that appellants could have avoided the accident by stopping again or remaining stopped; that after the driver of appellant's car saw appellee approaching she accelerated the speed of the automobile and came into contact with the right front side of appellee's automobile.

The evidence was conflicting as to the sppeed of appellee's automobile. There is further evidence that appellee, after seeing appellants' automobile entering the intersection, did not reduce his speed but swung to the far south of State Highway 14 to avoid the collision.

After considering all the evidence and taking the evidence most favorable to appellee, we cannot say that appellee was guilty of contributory negligence as a matter of law. The following words in the case of Jones v. Kasper (1941), 109 Ind.App. 465, 33 N.E.2d 816, are equally applicable here: 'The facts are in dispute, and it is only where the controlling facts are undisputed or only one reasonable inference can be drawn from the facts by reasonable men that contributory negligence becomes a matter of law. Bartley v. Chicago & E. I. Ry. Co. et al., [ 1940] Ind.Sup. , 24 N.E.2d 405; Baltimore & O. R. Co. v. Reyher [Adm'x] et al [ 1940], [216 Ind.Sup., 24 N.E.2d 284.']

Among the allegations of negligence set out in appellee's complaint are the following:

'10. That at said time and place the defendants did then and there carelessly and negligently operate said defendant's motor vehicle into and on said intersection and without stopping as required by said stop sign, and did then and there operate and propel said defendant's motor vehicle onto and against plaintiff's motor vehicle in the manner and method hereafter set out.

'11. That at said time and place the defendants carelessly and negligently operated said defendant's motor vehicle in the following particulars, towit:

'1. That said defendants carelessly and negligently failed and neglected to stop such motor vehicle prior to entering into and on said State Highway 14 from said State Highway 39.

'2. That said defendants carelessly and negligently operated said motor vehicle onto said highway 14 at a high and dangerous rate of speed taking into consideration the circumstances then and there existing, towit: 30 miles per hour.

'4. That said defendants carelessly and negligently failed and neglected to sound any horn or signal or warning device of any kind or character prior to colliding with plaintiff's motor vehicle.'

Each of appellant's counter-claims alleged that appellee was negligent in certain particulars, including the following: 'He drove at a high and excessive rate of speed, towit: 75 miles per hour; and he failed and refused to appropriately reduce the speed of said Buick as he approached said intersection.'

In our opinion appellants' tendered instruction No. 13, which the court refused to give would have withdrawn from the consideration of the jury subparagraph 1 of rhetorical paragraph 11 of appellee's complaint. The instruction as set out in appellants' brief reads as follows:

'I withdraw from your consideration specification one of negligence charged in the plaintiff's complaint, which reads as follows:

"That said defendants carelessly and negligently failed and neglected to stop such motor vehicle prior to entering into and on said State Highway 14 from said State Highway 39'

and instruct you to entirely disregard such specification of negligence in deliberating upon your verdict.'

Appellants' tendered instruction No. 12, which the court refused to give, would have withdrawn subparagraph 2 of appellee's complaint. The instruction as set out in appellants' brief reads as follows:

'I withdraw from your consideration specification two of negligence charged in the plaintiff's complaint, which reads as follows:

"That said defendants carelessly and negligently operated said motor vehicle onto said Highway 14 at a high and dangerous rate of speed taking into consideration the circumstances then and there existing, towit: 30 miles per hour.'

and instruct you to entirely disregard such specification of negligence in deliberating upon your verdict.'

Since the evidence was undisputed that the appellant driver stopped her motor vehicle prior to entering onto State Highway 14, it was the duty of the court to give appellants' tendered instruction No. 13. As Judge Achor, speaking for this court, said in Tribune-Star Publ. Co. v. Fortwendle (1954), 124 Ind.App. 618, 625 115 N.E.2d 215, 116 N.E.2d 548: 'The rule is firmly established in this state that neither 'instructions taken as a whole,' or the fact that the evidence is sufficient to support a verdict on other issues, excuses the refusal of a trial court to give an instruction that would withdraw from the jury an issue upon which there is no competent evidence. Northern Indiana Transit, Inc. v. Burk, 1950, 228 Ind. 162, 89...