Layman v. Hall Omar Baking Co.

• Decision Date: 31 January 1966
• Docket Number: No. 20164,No. 1,20164,1
• Parties: Gertrude LAYMAN, Appellant, v. HALL OMAR BAKING COMPANY and Donald McCarter, Appellees
• Court: Indiana Appellate Court

Page 726

213 N.E.2d 726

138 Ind.App. 673

Gertrude LAYMAN, Appellant, v. HALL OMAR BAKING COMPANY and Donald McCarter, Appellees.

No. 20164.

Appellate Court of Indiana, Division No. 1.

Jan. 31, 1966.

[138 INDAPP 674]

Berry, Kincade & Miller, Terre Haute, Branigin, De Moss & Jones, Franklin, for appellant.

John R. Hiner, Grace M. Curry, Indianapolis, James B. Young, Franklin, for appellees, Pogue & Young, Franklin and Bingham, Summers & Spilman, Indianapolis, of counsel.

WICKENS, Judge.

A suit to recover damages because of personal injuries was instituted by plaintiff-appellant. At the conclusion of the plaintiff's evidence the trial court sustained a motion for a directed verdict for defendant-appellee.

Here appellant by a motion for new trial alleges the verdict is contrary to law and that the trial court erred in instructing the jury to find for defendants.

This court is properly said to have approved the theory that the material allegations of appellant's complaint which are essential to recovery must be supported by 'substantial' evidence as differentiated from a mere 'scintilla.' Burke v. Burke (1963), 135 Ind.App. 235, 242, 191 N.E.2d 530 (Transfer Denied).

It has been our holding that a verdict should be directed where there is a total lack of substantial evidence of probative value. Sparks v. Baldwin (1965), Ind.App., 205 N.E.2d 173, 176.

[138 INDAPP 675] Those rules do not change the obligation of the reviewing court to consider only that evidence favorable to the party against whom the motion was directed and all reasonable inferences therefrom.

Unless there appears to be a total lack or failure of substantial evidence and the reasonable inferences therefrom of probative value upon at least one essential element of the plaintiff's case, the court should not give a peremptory instruction for a directed verdict. Phares v. Carr (1952), 122 Ind.App. 597, 600, 106 N.E.2d 242 (Transfer Denied).

The briefs of the parties indicate substantial differences of opinion as to what was established by the evidence. Accordingly we have also examined the transcript. Only the plaintiff's evidence was introduced. There were four witnesses. A doctor testified as to the injuries. The defendant driver was called to the stand by plaintiff and questioned merely as to the ownership and control of his co-defendant's vehicle; he was asked no questions calculated to establish negligence. Plaintiff told her version of the accident and further testified concerning her injuries. Plaintiff's husband testified, party as to his wife's injuries and also in a very limited way as to the position of the vehicles when he arrived at the accident scene. For all practical purposes we are therefore confined, in determining whether a prima facie case was made, by a minute examination of plaintiff's testimony.

Plaintiff testified that on the day in question shortly after 8 A. M. she was driving her husband's auto going to pick up her daughter who was at work. She drove north on Fruitridge Avenue, a north and south street in Terre Haute. There were scattered residences and a corn field in the area where Fruitridge is intersected by Linden Street coming from the west and forming a T intersection. About a block or a block and a half south of this intersection she first observed the Omar bakery truck. It was also going north on Fruitridge and was in its right hand lane as was plaintiff. She [138 INDAPP 676] estimated the speed of the truck at 15 m. p. h. and her speed as she was overtaking it at 30 m. p. h. Relating what happened as she came up to about four car lengths behind the truck, plaintiff said: 'I sounded my horn and looked back to see if there were any other cars coming, which there weren't, and I sounded my horn and I pulled out into my west lane.'

Further the plaintiff testified:

'Well, as I just got up with my front wheels to his back wheels he swerved and came across into my lane, so I left the road in order to keep a collision from being performed there and then I was trying to control my car and then he swerved back and went on down the road and I was trying to get my car back upon the road.'

Plaintiff also related that half of the truck was across the center of the highway, that her car partly left the travel surface and collided with a tree about 6 feet off the highway and on the west side of Fruitridge and 25-30 feet north of the intersection.

She testified that she started to go around the truck when she was about 175 feet south of where Linden Street intersects Fruitridge. There was no contract by the vehicles.

The plaintiff's allegations of negligence were the failure to keep a lookout, failure to signal turning and failure to keep defendants' vehicle under control. It was incumbent on plaintiff to establish that the proximate cause of injury was one or more of the foregoing charges. We are not able to find any direct evidence in the record pertaining to the charges of failure to keep a lookout or failure to keep the vehicle under control. It is...