Lorber v. Peoples Motor Coach Company
| Decision Date | 01 February 1929 |
| Docket Number | 13,139 |
| Citation | 164 N.E. 859,89 Ind.App. 139 |
| Parties | LORBER v. PEOPLES MOTOR COACH COMPANY ET AL |
| Court | Indiana Appellate Court |
Rehearing denied April 17, 1929.
From Marion Superior Court (A37,883); Joseph M. Milner, Judge.
Action by Rae Lorber against the Peoples Motor Coach Company and another. From a judgment on a directed verdict for the named defendant, the plaintiff appealed.
Reversed.
Clyde P. Miller, for appellant.
Robert I. Marsh and George O. Cowan, for appellees.
The appellant, Rae Lorber, brought this action against the appellees to recover damages for personal injuries sustained by her on September 29, 1926, at about 8:15 p. m., while she was riding in the rear seat of an automobile being driven south on Rural street in the city of Indianapolis, when it was struck by an automobile driven by appellee Louis P. Reed, approaching from the south, and immediately after the Reed car had struck a corner of a bus operated by appellee Peoples Motor Coach Company. The collision occurred as the bus was turning east on Twenty-third street, the Reed car being behind and following said bus.
The issues were the complaint and answer in general denial by appellee Reed. Trial by jury. At the conclusion of appellant's evidence, appellee Peoples Motor Coach Company moved the court to instruct the jury to return a verdict for it, which motion was overruled, and, upon the conclusion of all the evidence, said motion was renewed. The court, by instruction No. 20, after the argument, instructed the jury to return a verdict for appellee Peoples Motor Coach Company. The jury returned a verdict against appellee Reed in the sum of $ 1,000. The error assigned is the overruling of appellant's motion for new trial.
In the following statement of facts, the court has in mind the rule of law, well settled in this state, that the motion for appellee Peoples Motor Coach Company for a verdict in its favor is equivalent to a demurrer to the evidence, and, in such case, that "the court is bound to accept as true all the facts which the evidence tends to prove and, as against the party demurring, to draw from the evidence all such reasonable inferences as the jury might draw." Also, "if there is a conflict in the evidence, then only such evidence as is favorable to the party against whom the demurrer is directed can be considered, and that which is favorable to the demurring party is deemed to be withdrawn." Curryer v. Oliver (1901), 27 Ind.App. 424, 60 N.E. 364, and authorities there cited.
Appellant was riding in a closed Willys-Knight seven passenger car accompanied by Miss Zimmerman and her brother, David Falender, who was driving the car, proceeding south on the west side of Rural street above Twenty-third street, which enters Rural street on the east side thereof. At said entrance of Twenty-third into Rural, the distance between the east and west curbs of Rural is approximately thirty feet. Falender, as he proceeded south at a speed of about fifteen miles per hour, had a clear view ahead for a distance of three blocks. The bus operated by appellee Peoples Motor Coach Company was observed by the persons riding in the Willys-Knight car coming north on Rural street, when the bus was approximately one-half block from Rural and Twenty-third, and, at that time, and continuously until the bus made the turn into Twenty-third, it was traveling on the west side of Rural street, maintaining a speed of nearly fifteen miles per hour, in such a manner as to give to Miss Zimmerman the impression "that it was going to make a west turn," she not knowing at that time that Twenty-third street did not intersect Rural on the west; that the bus started to turn when it was parallel with the Willys-Knight car, which car at said time was on west side of Rural, facing south, and against the west curb of Rural, near the entrance of Twenty-third street; that the bus, just prior to and at the time of making a right-hand turn, was to the left of the center of Rural street.
Appellee Louis Reed, about the time mentioned, was driving north on Rural street, and his evidence is to the effect that he first saw the bus at Roosevelt avenue, at the railroad crossing where the bus turned on Rural street, about four blocks from Twenty-third street; that he followed the bus north on Rural, maintaining a distance of approximately twenty to thirty feet between his car, an open Dodge car, and the bus; that the speed of the bus was fifteen miles per hour; that it was raining, street wet and slippery; that the headlights of his car were burning and the wind-shield wiper working; that the bus was visible at all times; that the red tail-light on the left rear of bus over the license number was observed by him and, as the bus approached Twenty-third, it swung to the west on the left side of Rural street to make a right-hand turn and no sign or signal was given by the operator of the bus by a mechanical device that he intended to make such turn; that no stop-light was observed at any time nor any signal given prior to making the turn; that he did not observe any signal device on the rear of the bus of a mechanical nature; that he did not know the bus was going to make the turn into Twenty-third until the front end of the bus had started around; that, as the bus pulled to the left side of Rural street, he did likewise; that when he observed that the bus was making a right-hand turn into Twenty-third he immediately applied his brakes, locked the wheels, car skidded and struck the rear end of the bus as it was turning, which diverted the course of his car to the left, thereby striking the Willys-Knight car.
The driver of the bus gave evidence which tends to prove that the stop-light was on the left side of the bus in the rear, close to the tail-light; that the stop-light was supposed to burn when applying the foot brakes; that he slackened his speed very little, on approaching Twenty-third street, "using foot brake as means to signal cars behind me." The bus was about twenty-four feet in length and seven and one-half to eight feet wide; that the stop-light with which the bus was equipped was operated by two wires attached to foot brake, which wires ran under the body of the bus to the stop-light. When the foot brake was applied and moved forward one or one and one-half inches, usually a contact or current was made, which caused the word "stop" to appear in red letters. However, when bus was in motion, the "wires would get slow or short for the minute and then would be off again," and at such times the stop-light would not work. Appellee Peoples Motor Coach Company introduced evidence which was, in many instances, in conflict with and contrary to the facts herein given.
The allegations of negligence, as alleged by appellant in her complaint against appellee Peoples Motor Coach Company, material to the questions involved, are the failure of the driver of the bus to give any signal of his intention to turn from Rural into Twenty-third street, driving his motor bus so far to the west side of Rural street as to block said street and obstruct the view, at the junction of Twenty-third street with Rural from the north and from the south; the failure of appellee Peoples Motor Coach Company to maintain a mechanical signal device or light in working order and repair on its said bus as required by law, and its failure to give appellee Reed a signal by such mechanical device of his intention to slow down and turn from Rural into Twenty-third street. The acts of negligence alleged in the complaint against appellee Reed are: (a) Driving his automobile toward the north closely behind said bus at a high and dangerous rate of speed; (b) carelessly and negligently attempting to drive around said bus, whereby the car driven by appellee Reed collided with the rear of said bus at the time said bus was making the turn into Twenty-third street, which caused Reed's car to strike the automobile in which appellant was riding.
The appellant further alleges in her complaint that her injuries were caused solely and proximately by reason of the careless, negligent and unlawful acts of appellees.
Section 10149 Burns 1926 provides that it shall be unlawful for any person who is driving a motor vehicle in any street to slow down, or turn to right or left without first signaling his intention to any person or persons who may be following closely in the rear, either with his arms, or by some mechanical device, as therein provided, and, if signals with the arms are not given, the operator shall be responsible for any failure of such mechanical device to properly indicate his intentions; that no light other than the red light shall be used as a stop-light.
Section 10134 Burns 1926 provides that motor busses shall be equipped with a stop-light which shall be so attached and adjusted that when the service brakes of such motor bus are applied, a red light automatically shall display on the rear of such bus, in such manner, and with such distinctness, that the operator of any motor vehicle which may be following it or approaching from the rear will have adequate warning that it is about to stop or slow down.
Section 10144 Burns 1926 makes it unlawful for any person to operate a motor vehicle in a reckless or dangerous manner and so as to endanger life, limb or property of any person, and reckless driving is construed to mean driving on that side of any highway which is to the left of the operator, or driving from side to side of the highway in any other manner that is not safe or prudent.
The violation of §§ 10134 and 10149 Burns 1926, or either of them, by one operating a motor bus on a public highway is negligence per...
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