Leuck v. Goetz, 471A79
| Decision Date | 03 April 1972 |
| Docket Number | No. 471A79,471A79 |
| Citation | 151 Ind.App. 528,280 N.E.2d 847 |
| Court | Indiana Appellate Court |
| Parties | Gary P. LEUCK, Plaintiff-Appellant, v. Robert GOETZ, Defendant-Appellee. Jeanette LEUCK, Plaintiff-Appellant, v. Robert GOETZ, Defendant-Appellee. |
Vaughan & Vaughan, Charles R. Vaughan, Lafayette, Karl M. Jacobs, Fowler, for plaintiffs-appellants.
Joseph T. Bumbleburg, Ball, Eggleston & Bumbleburg, Lafayette, for defendant-appellee.
The cause appealed is a consolidation of two actions filed in the Benton Circuit Court on February 27, 1968 by plaintiff-appellants, Gary P. Leuck and his wife, Jeanette Leuck, against defendant-appellee, Robert Goetz, for personal injuries sustained by appellants in an automobile accident allegedly caused by the negligence of appellee. On July 3, 1968 both cases were venued to the Tippecanoe Circuit Court. The motion to consolidate was filed September 11, 1968, and granted on February 10, 1969.
The conclusion of the trial to a jury on June 18, 1970 resulted in judgments entered upon verdicts for defendant in both cases.
The trial record discloses that on September 24, 1967, the vehicle operated by appellant-Gary Leuck and occupied by his wife was proceeding east on Reifel Road, a country road located in Benton County, Indiana. At the same time, appellee was travelling south in a pick-up truck on Benner Road. The accident occurred at the intersection of these two roads. There were no automatic or statutory traffic controls, signals or signs present at the time. The northwest corner of the intersection was occupied by a standing field of corn so as to possibly hinder the view of either or both drivers as they approached the intersection.
At the trial a professional photographer was called by plaintiff-appellants. He testified that on the day of the accident he took photographs of the intersection in question and that upon the same or the following day he took pictures of the vehicles involved. Over objection, he was permitted to testify on cross-examination that since the date of the accident, certain changes had been made at the intersection, including the placement of a stationary stop sign for traffic east-bound, the direction appellants had been travelling.
The Sheriff of Benton County testified that he arrived at the scene of the accident at approximately 9:20 A.M. He stated that he observed skid marks from appellants' automobile and measured them to be approximately forty-five feet in length, but found no skid marks behind appellee's truck. The Sheriff further stated that both appellant-Gary Leuck and appellee informed him of their respective speeds just prior to the accident. The former claimed he was travelling at approximately 50 m.p.h. and the latter claimed his speed to be approximately 40 m.p.h.
Appellants later called Gerald Wallpe who testified that he was travelling north on Benner Road and was passed by appellee going in the opposite direction at a point approximately one-half mile north of the junction at which the accident took place. Mr. Wallpe estimated appellee's speed to be between 70--75 m.p.h.
When appellant-Gary Leuck testified, he stated that when he approached the intersection, his speed was 40 m.p.h. He explained that he was driving slowly and cautiously because his wife was pregnant, and that his wife made no remarks about the manner in which he was driving the automobile. He stated that he recalled cornfields to the left as he approached the intersection, but that he recalled nothing of the collision itself.
Upon direct examination, appellee denied the allegation of Gerald Wallpe that he, appellee, was going 70--75 m.p.h. and stated his speed to be approximately 50 m.p.h. and that he slowed to approximately 40 m.p.h. to enter the intersection. Appellee testified that as he approached the intersection, he 'slowed down and * * * looked both ways.'
Subsequently, Kenneth W. Heathington, a licensed professional engineer was called by appellee to testify as an expert accident reconstructionist. In Dr. Heathington's opinion, at the precise moment and point of impact, appellee was travelling at approximately 35 m.p.h. and appellants were travelling at approximately 54 m.p.h.
The following issues are presented for our review:
1. Whether the trial record is so defective as to preclude consideration by this Court of any questions which depend upon evidentiary matter for their resolution?
2. Whether the trial court erred in admitting and refusing to strike evidence that stop signs which faced appellants' direction of travel were placed at the accident intersection subsequent to the accident?
3. Whether the trial court erred in giving appellee's Instruction No. 11 concerning joint enterprise?
4. Whether there was sufficient evidence of probative value to support a finding of contributory negligence with respect to appellant-Jeanette Leuck, and whether the trial court erred by giving appellee's Instruction No. 9, concerning the duty of care as to a passenger-guest in an automobile?
Appellee contends that the evidence adduced below is not properly before this court because:
1. The trial record omits certain evidence, to-wit: numerous physical exhibits, and that therefore certain instructions which were given are not supported by evidence.
2. The trial record bears an incomplete and inaccurate clerk's certificate.
3. The trial record was not properly filed with the clerk and no order book entry was made evidencing such filing, thus it is not part of the record of proceedings.
On October 21, 1971, appellee filed a verified petition for extention of time within which to file his answer brief. This court granted that petition by order of October 26, 1971, and extended appellee's filing date to December 14, 1971. It is only in that brief, filed pursuant to the extension, that appellee has raised the 'sufficiency of the trial record' issue.
We find that appellee has waived his right to object to the alleged defects of record. Appellate Rule 14(b) reads in part as follows:
Pursuant to AP. 14(B), by filing his petition for an extension of time, appellee was required to limit the scope of his brief to the merits of the instant cause. If he wished to have the appeal dismissed for the technical objection stated heretofore, the essence of which has nothing to do with the merits of the case, he should have made the appropriate motion prior to filing his petition for extension of time. By appellee's failure in this regard, he has waived his objection. This finding has been firmly established by prior holdings of this court. Bland v. Phillips (1966) 138 Ind.App. 214, 213 N.E.2d 339; Central Indiana R.R. Co. v. Mikesell (1965) 139 Ind.App. 478, 211 N.E.2d 794; Langford v. DeArmond (1965) 137 Ind.App. 448, 209 N.E.2d 737. Although the aforementioned decisions were governed by former Indiana Supreme Court Rule 2--16, the language in that Rule is identical to AP. 14(B), rendering the earlier pronouncements clearly applicable to the instant case.
We further note that appellee does not contend that the evidence as transcribed and as physically contained in the record filed in this court is in any manner inaccurate.
Appellants argue that the trial court erred in admitting evidence, over their objection, that stop signs were placed at the intersection facing appellants' direction of travel subsequent to the accident. Appellants claim that such testimony is inadmissible in that it is only the condition of the intersection at the time of the accident, and not subsequently, which is relevant.
At trial, the professional photographer who took photographs of the accident scene, was asked upon cross-examination by appellee whether the intersection was the same at the time of trial as it was at the time of the accident. The pertinent testimony is as follows:
'Q. Now, from your observation, have you been--passed that way any time recently in the last-since the accident happened?
A. Yes, I have.
Q. Would you say that so far as the lines of the direction and the course of each road and other fixed objects in farm improvements and the like, that the intersection is substantially the same now as it was September 24, 1967?
Q. When you were through there on the occasion that you mentioned, what, if any difference did you notice, with respect to any fixed object or objects or the course--or of the road, either road or the location of fence lines, of telephone poles,...
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