Lindley v. Sink, 27492.

Docket Nº27492.
Citation30 N.E.2d 456, 218 Ind. 1
Case DateDecember 16, 1940
CourtSupreme Court of Indiana

30 N.E.2d 456

218 Ind. 1


No. 27492.

Supreme Court of Indiana

December 16, 1940

[218 Ind. 5] [30 N.E.2d 457]

Appeal from Sullivan Circuit Court; Martin L. Pigg, Judge.

[218 Ind. 6] [30 N.E.2d 458]

Fenton, Steers, Beasley & Klee, of Indianapolis, and Charles D. Hunt and W. Paul Stratton, both of Sullivan, for appellant.

Chas. H. Bedwell, of Sullivan, and G. W. Wells, of Terre Haute, for appellee.

SWAIM, Chief Justice.

This was an action for damages for the wrongful death of Cora Skidmore, resulting from injuries received by her in an accident which occurred while she was a passenger in an automobile driven by her husband, and which accident was alleged to have been caused by the negligence of the appellant, the driver of the automobile which collided with the automobile in which the decedent was riding. The action was brought by Oliver C. Sink, as administrator of the estate of said decedent, for the benefit of her surviving husband and children.

The trial resulted in a verdict and judgment in favor of appellee for $4,000. The appellant assigned as error the action of the court in overruling (1) appellant's motion to strike out parts of appellee's complaint, (2) appellant's motion to make the complaint more specific, (3) appellant's demurrer to appellee's complaint, and (4) appellant's motion for a new trial.

The first assigned error discussed by the appellant is the alleged error of the court in overruling a motion to strike out parts of the complaint. It has been uniformly held by this court that the action of the court in overruling a motion to strike out a part or all of a pleading does not constitute reversible error even though such action be erroneous. Butt v. Iffert, 1909, 171 Ind. 554, 555, 86 N.E. 961.

[218 Ind. 7] The second alleged error presented by appellant is the action of the court in overruling appellant's petition to make the complaint more specific. The motion to make more specific was apparently for the purpose of requiring the plaintiff (appellee) to state facts showing that plaintiff's decedent was not guilty of contributory negligence. By § 2-1025, Burns' 1933, § 129, Baldwin's 1934, the plaintiff in this case was expressly excused from alleging 'the want of contributory negligence * * * on the part of the person for whose * * * death the action' was brought. Since it was not necessary to allege the want of contributory negligence, the plaintiff could not be required to allege facts showing the want of such contributory negligence. Southern Indiana R. Co. v. Peyton, 1901, 157 Ind. 690, 694, 61 N.E. 722. The motion to make the complaint more specific was properly overruled.

Appellant also contends that the action of the court in overruling the demurrer to the complaint constituted reversible error for the reason that, (a) the averments of the complaint did not affirmatively show that the defendant was guilty of negligence, (b) it did not affirmatively show that the decedent's own negligence did not proximately contribute to her injury, and (c) the allegations of the complaint showed that plaintiff's decedent was guilty of contributory negligence.

The complaint charged that the defendant 'negligently and carelessly drove' the automobile he was driving into and against the automobile in which plaintiff's decedent was riding, and thereby caused the injuries which resulted in her death. This court has many times reaffirmed the rule that a general allegation of negligence in a complaint is sufficient to withstand a demurrer for insufficiency of [218 Ind. 8] facts unless the specific facts pleaded contradict such general allegation. Citizens' Street R. Co. v. Jolly, 1903, 161 Ind. 80, 85, 67 N.E. 935. In the instant case the complaint alleged no facts concerning the conduct of the defendant which were inconsistent with the general allegation of negligence. As hereinbefore shown it was not necessary that the complaint negative contributory negligence on the part of the plaintiff's decedent. § 2-1025, Burns'; § 129, Baldwin's, supra. It necessarily follows that the failure to negative such contributory negligence did not make the complaint demurrable.

While it is true that, under our present law (§ 2-1025, Burns'; § 129, Baldwin's) the defendant has the burden of proving contributory negligence, a complaint may be subject to demurrer if the averments thereof affirmatively show such contributory negligence. This result follows, [30 N.E.2d 459] however, only where the facts averred are not reasonably subject to any inference other than that of contributory negligence. National, etc., Vehicle Co. v. Kellum, 1915, 184 Ind. 457, 464, 109 N.E. 196; Greenawaldt v. Lake Shore, etc., R. Co., 1905, 165 Ind. 219, 223, 74 N.E. 1081. The complaint herein does not so show contributory negligence.

Appellant assigned as error the action of the court in overruling his motion for a new trial and thereunder asserts that the verdict of the jury is not sustained by sufficient evidence and is contrary to law; that the court erred in giving and in refusing to give, certain instructions and in the admission and rejection of certain evidence.

The appellant contends that the evidence as a whole not only does not show that the appellant was guilty [218 Ind. 9] of negligence, but that it affirmatively shows that appellee's decedent was guilty of contributory negligence. Considering only the evidence most favorable to appellee, we find evidence from which the jury could find the following facts: The accident occurred about one mile South of the city of Sullivan at the junction of state highway number 54 with United States highway number 41. Both roads are now, and were at the time of the accident, much traveled. At the point of junction highway number 41 extends north and south and highway number 54 extends east from number 41 forming a 'T' junction. Highway number 41 is paved with brick approximately twenty feet wide. The pavement of highway number 54 is of concrete 18 feet wide up to a point 130 feet east of number 41, from which point west the concrete curves out on each side of number 54 forming a fanshape junction with number 41, the concrete being approximately 250 feet wide along the east edge of number 41. Each highway has a black center line, the center line of number 54 extending to the east edge of the brick of number 41. A stop sign for the traffic on number 54 was located on the north side of number 54 about 150 feet east of number 41.

On the night of the accident Alonzo Skidmore, the husband of decedent, accompanied by the decedent and their daughter, was driving west towards number 41 on highway number 54. As he approached number 41 he brought his automobile to a stop near the center line of number 54 and about six or eight feet east of the east edge of the pavement of number 41. In so stopping his automobile he 'killed' the engine and, because of a broken starter, it could not be started again without cranking.

[218 Ind. 10] After the Skidmore automobile came to a stop two automobiles passed going south on number 41 and then the decedent said, 'There comes a car from the south. It's taking all the road. It looks like it is going to hit us.' After this was said, and before the Skidmore automobile could be started, it was struck by the automobile coming from the south which was being driven by the appellant.

South of the junction of the two highways there is a bridge 95 feet long on highway number 41. The bridge is 348 feet south from the center line of highway number 54. Appellant driving north along number 41, at a speed according to his testimony, of not over sixty miles an hour realized that the Skidmore automobile was approaching the junction of the two roads when he, the appellant, was at the south edge of the bridge. The appellant's automobile was fitted with four-wheel brakes which were in good condition and appellant started to apply the brakes as soon as he saw the Skidmore automobile. After the appellant's automobile crossed the bridge it veered to the west and crossed the center line of Number 41, then back to the right of said center line, then at least partially off of the brick pavement of number 41 and finally struck the Skidmore automobile which was standing still about six or eight feet east of the brick pavement of Number 41 and approximately in the center of number 54.

According to appellant's testimony he started applying the brakes of his automobile approximately 400 feet from the point of collision. When he came within sixty or sixty-five feet of the Skidmore automobile he applied the brakes so hard that the tires left skid marks on the pavement from that point to the point of collision. In spite of these efforts by the appellant to stop [218 Ind. 11] his automobile the force of the collision was so great as to practically demolish both automobiles. The front end of the appellant's automobile was mashed in; the steering wheel was pushed up and through the windshield; the motor was pushed back into the body of the automobile, and the crankcase was bursted. The Skidmore automobile was turned over; the frame was bent in an elbow shape, and [30 N.E.2d 460] the front wheels were shoved back under the frame; the rear end of the motor was shoved to the right of the automobile; the front end pushed around to the left and the drive shaft was bent in an angle. The physical facts surrounding this accident would seem to indicate, rather conclusively,...

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  • Lindley v. Sink, 27492.
    • United States
    • Indiana Supreme Court of Indiana
    • December 16, 1940
    ...218 Ind. 130 N.E.2d 456LINDLEYv.SINK.No. 27492.Supreme Court of Indiana.Dec. 16, Action for damages for wrongful death of Cora Skidmore, by Oliver C. Sink, as administrator of the estate of Cora Skidmore, deceased, against Samuel E. Lindley, Jr. Judgment for plaintiff, and defendant appeals......

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