Lewis v. Mackley, 17973

• Decision Date: 19 June 1951
• Docket Number: No. 17973,17973
• Citation: 122 Ind.App. 247,99 N.E.2d 442
• Parties: LEWIS et al. v. MACKLEY et al.
• Court: Indiana Appellate Court

Page 442

99 N.E.2d 442

122 Ind.App. 247

LEWIS et al. v. MACKLEY et al.

No. 17973.

Appellate Court of Indiana, in Banc.

June 19, 1951.

Ora L. Wildermuth, Gary, Allen P. Twyman, E. Chicago, Leslie H. Vogel, George Bunge of Chicago, Ill. (of counsel), for appellants.

Strom & Spangler, Gary, Edward J. Ryan, Valparaiso, for appellees.

BOWEN, Judge.

This is an appeal from a judgment in an action brought by the appellees, who were the widow and dependent children of one Guy Mackley, deceased. The complaint was grounded upon allegations of an unlawful and malicious conspiracy for the alleged purpose of preventing the bringing of a suit to recover damages for the death of said decedent. The complaint alleged that the appellees' decedent died as a result of injuries suffered in the collision of a milk delivery truck owned by Norman Allen, David Allen, Edward Allen, and Carl Youngren d/b/a Prairie View Dairy, driven by their agent, Stephen Gazdick, and a Chevrolet sedan being driven by the decedent. The complaint further alleged that the appellant defendant, Alan E. Lewis, an agent for the appellant defendant, Columbia Casualty Company and such company and the owners of such dairy conspired, schemed, and planned to secure the appointment of the said Alan E. Lewis as adminsitrator of the estate of Guy Mackley, deceased, to defeat the chose in action for the alleged wrongful and negligent acts in causing the death of said decedent, Guy Mackley, and that the defendants, through Alan E. Lewis, did further conspire, scheme, and plan to defeat the plaintiffs' rights as the widow and dependent children of such decedent to recover for the decedent's alleged wrongful death by failing to institute an action for such wrongful death.

Issues were joined upon five paragraphs of complaint and appellants' answer in two paragraphs.

The cause was tried to a jury, and the jury returned a verdict in favor of the appellees and against the appellants, Alan E. Lewis, and the Columbia Casualty Company in the sum of $18,000, upon which verdict judgment was rendered for appellees.

Errors assigned for reversal and not waived, are that the trial court erred in overruling appellants' motion to strike out appellees' second paragraph of reply to appellants' amended and supplemental second paragraph of answer; that the court erred in overruling appellants' demurrer to the second paragraph of appellees' reply to appellants' amended and supplemental second paragraph of answer; and, that the court erred in overruling appellants' motion for a new trial.

Appellant's assignments of error present the question as to whether there is sufficient evidence of probative value that there had been any negligent act committed by the driver of the Prairie View Dairy truck which was the proximate cause of the accident which resulted in the death of the decedent, Guy Mackley, and whether there is sufficient evidence of probative value to justify the submission of such cause to the jury under the doctrine of 'last clear chance.' The evidence in regard to the happening of the accident is undisputed.

The questions presented by this assignment of error must be determined upon a basis of the physical facts and circumstances, and the testimony of Stephen Gazdick, the driver of the truck belonging to the Prairie View Dairy. Gazdick testified in relating how the accident happened, 'I was driving north down Clark Road between 10th and 5th avenues in Gary, Indiana. I seen an automobile approaching me from the opposite direction and he seemed to be gradually coming over to my side of the road, so I didn't know at first what to expect of it. When I seen that he kept on coming toward me, I pulled my truck over to the side of the road as far as I could go. I pulled two wheels off the pavement completely and I stopped and just waited under the dash, and I no sooner stopped when the automobile crashed into the front end of my truck.'

He testified that the other car was possibly a block away when he first saw it edging over, and such car continued edging over to his side of the road during that block. Gazdick testified that he continued going north on Clark Road at his normal rate of speed which he said was not over 25 miles per hour until he came to a stop. When he saw the decedent's car coming toward him, he edged off the pavement and came to a stop. He testified that there was a big ditch off from where he stopped, and if he had not stopped suddenly he would have toppled over, and he would have gone over in a hole five or six feet deep on the side of the road if he had pulled off anymore. Such hole or ditch was ten to fifteen feet wide. Gazdick's truck was struck by the car of the decedent when two of the truck's wheels were some two or three feet off of his side of the pavement, and the front ends of the two vehicles came together. The witness Gazdick also testified that 'at the time I thought * * * after this accident happened my thoughts were that the decedent had fallen asleep at the wheel of his car.' Gazdick also testified that the time was too short and that he did not have an opportunity to get a view of decedent or tell for sure whether he was asleep 'or anything.'

From the undisputed evidence in this case, we are confronted with a situation where the decedent drove his car over into the wrong side of the highway and collided with the truck being driven by the agent of the Prairie View Dairy Company, and the driver of such truck, in the meantime, had observed the approach of such car for about a block, and had observed the fact that such car was edging over to the wrong side of the highway, and the driver of the truck continued forward and when he saw the car keep coming toward him, he pulled the truck over to the side as far as he could go with two wheels off the pavement completely and ducked under the dash until the collision occurred.

Do such circumstances, as related above, bring this case within the doctrine of the 'last clear chance', or present circumstances which justify the submission of this cause to a jury under the doctrine of the 'last clear chance?'

The application of the doctrine of 'last clear chance' has been firmly established by the courts of this state, and stated broadly is that the negligence of the plaintiff does not prevent a recovery for the negligence of the defendant where it appears that the defendant by exercising reasonable care, might have avoided injuring the plaintiff, notwithstanding the plaintiff's negligence. Indianapolis Traction, etc. Co. v. Kidd, 1906, 167 Ind. 402, 79 N.E. 347, 7 L.R.A.,N.S., 143; Indianapolis Traction & Terminal Co. v. Smith, 1906, 38 Ind.App. 160, 77 NE. 1040; Indianapolis St. R. Co. v. Bolin, 1907, 41 Ind.App. 266, 78 N.E. 210, 83 N.E. 754; Indianapolis St. R. Co. v. Schmidt, 1904, 35 Ind.App. 202, 71 N.E. 663, 72 N.E. 478; Southern Ind. R. Co. v. Fine, 1904, 163 Ind. 617, 72 N.E. 589; Terre Haute, I. & E. Traction Co. v. Stevenson, 1919, 189 Ind. 100, 123 N.E. 785, 126 N.E. 3; Indianapolis Traction etc., Co. v. Croly, 1913, 54 Ind.App. 566, 96 N.E. 973; Chesapeake & O. Ry. Co. v. Williams, 1943, 114 Ind.App. 160, 51 N.E.2d 384, 388; 38 American Jurisprudence 900, § 215.

The doctrine of 'last clear chance' is not an exception to the long established rule that contributory negligence on the part of the person injured is a bar to recovery unless the injury is wantonly or willfully inflicted, nor is the rule of comparative...