Lease v. G. & A. Truck Lines, 17962

• Decision Date: 14 February 1950
• Docket Number: No. 17962,17962
• Citation: 120 Ind.App. 78,90 N.E.2d 351
• Parties: LEASE v. G. & A. TRUCK LINES, Inc.
• Court: Indiana Appellate Court

Page 351

90 N.E.2d 351

120 Ind.App. 78

LEASE v. G. & A. TRUCK LINES, Inc.

No. 17962.

Appellate Court of Indiana, in Banc.

Feb. 14, 1950.

Royal L. Lease, Valparaiso, George W. Douglas, Valparaiso, for appellant.

Draper & Eichhorn, Gary, for appellee.

ROYSE, Judge.

Appellee brought this action for damages against appellant for damages to its tractor trailer which was being operated by its employee and was in an accident with an automobile owned by appellant. The accident occurred on State Highway 2 about seven miles Northeast of Valparaiso. Appellant in addition to his answer under the rules to the complaint of appellee filed his cross-complaint against appellee for personal injuries and damages to his automobile.

Trial to jury resulted in a verdict against the appellee on its complaint and against the appellant on both paragraphs of his cross-complaint. Judgment accordingly.

The error assigned here is the overruling of appellant's motion for a new trial. We will consider the specifications of that motion in the order which they are presented.

The judgment herein appealed from was against the appellant who contends the verdict is contrary to law because it was not sustained by sufficient evidence. The verdict of which appellant complains was negative and therefore appellant may only assert it was contrary to law because he was denied relief which he was entitled to under the uncontradicted evidence. Wilson v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905; Wadler v. Mogul Rubber Co., 1945, 116 Ind.App. 152, 61 N.E.2d 472.

It would serve no good purpose to summarize here the conflicting evidence in this case. From our examination of the record, it does not disclose such conclusive evidence that would permit us to say as a matter of law that it entitled appellant to relief denied him by the verdict.

Appellant next contends the trial court erred in giving to the jury appellee's tendered Instruction No. 14, which is as follows: 'You are instructed that if you believe from all of the evidence in this case that the defendant and cross-complainant, Royal Lease, by the exercise of ordinary care either by turning his automobile to the right or stopping the same when he saw that an accident was imminent, could have avoided the accident which resulted in the alleged damage to him, he is guilty of such negligence as would prevent his recovery in this action and your verdict should be against the cross-complainant upon his cross-complaint.'

The objection of appellant to this instruction in the trial court is as follows: '* * * it tells the jury that the exercise of ordinary care required the defendant to either turn his car to the right or stop the same when he saw that an accident was imminent. It is a question of fact for the jury to determine whether the exercise of ordinary care required him to so turn or stop his car. The instruction is so worded that that is not its meaning. The jury could readily believe that that was its meaning and be confused by the giving of said instruction.'

Appellee attempts to assert here that appellant's objection to this instruction is not in the record, but appellee having filed a petition for time to file its brief, has waived the right to present this question. Gamble v. Lewis, 1949, Ind.Sup., 85 N.E.2d 629, 632.

We do not approve the form of this instruction. However, we do not believe it was erroneous for the reasons set out in the above objection--which was the only objection made to the trial court. In our opinion it does not tell the jury that the exercise of ordinary care required the appellant to either turn his car to the right or stop the same. In our opinion the instruction in effect told the jury that if they found from all of the evidence in this case that by the exercise of ordinary care appellant, by turning to the right or stopping when he saw the accident was imminent, could have avoided the accident, he was guilty of such negligence as would bar his recovery. It may...