Del-Mar Garage, Inc. v. Boden

• Decision Date: 18 February 1932
• Docket Number: 14,135
• Citation: 179 N.E. 729,95 Ind.App. 317
• Parties: DEL-MAR GARAGE, INCORPORATED, v. BODEN
• Court: Indiana Appellate Court

179 N.E. 729

95 Ind.App. 317

DEL-MAR GARAGE, INCORPORATED, v. BODEN

No. 14,135

Court of Appeals of Indiana

February 18, 1932

Rehearing denied July 27, 1932.

Transfer denied December 15, 1932.

From Marion Superior Court (A-48584); James M. Leathers, Judge.

Action by Lincoln G. Boden against the Del-Mar Garage, Incorporated. From a judgment for plaintiff, the defendant appealed.

Affirmed.

Charles E. Henderson and Laurens L. Henderson, for appellant.

Alvah J. Rucker, Oren S. Hack and B. Howard Caughran, for appellee.

OPINION

CURTIS, J.

This was an action brought by the appellee against the appellant to recover damages for personal injuries alleged to have been caused by the negligence of an employee of the appellant. The complaint was in one paragraph, which was later amended, and thereafter there was filed a second amended complaint. Issues were formed upon the filing of a general denial. Trial was had before a jury, who returned a verdict of $ 3,000.00 in favor of the appellee, upon which a judgment was entered by the court in accordance with the verdict, from which judgment this appeal is prosecuted.

The error relied upon for reversal is the overruling of the appellant's motion for a new trial which contains the following causes: "(1) The verdict of the jury is not sustained by sufficient evidence and is contrary to law. (2) The damages assessed by the jury are excessive. (3) The court erred in giving to the jury each of the instructions separately and severally numbered from one to eighteen inclusive. (4) The court erred in refusing to permit O. G. Meyers, a witness for the defendant, to answer the following question." (Here follows the question and the record made thereon.)

It is earnestly contended by the appellee that no questions are presented, due to errors in briefing. Some of the objections pointed out by the appellee are extremely technical and others present serious questions, but upon the whole we have concluded to consider the case upon the merits, giving the appellant the benefit of the "good faith attempt rule."

While the motion for a new trial seeks to base error in the giving of each of the 18 instructions, given by the court, yet the appellant, under "Propositions, Points and Authorities" discusses only the alleged error as to the giving of instruction number 13. Error, if any, as to the giving of the other instructions is therefore waived. The only other alleged error discussed by the appellant relates to the refusal of the court to permit the witness Meyers to answer a certain question. These alleged errors will be taken up in order above mentioned.

The salient parts of the second amended complaint, upon which the case was tried, are as follows: "That the defendant, on or about January 21, 1929, ran and operated a certain garage in the city of Indianapolis and, for hire, stored automobiles of owners therein; that the first floor of the garage is composed of an office where the business with the customers is conducted and that there are certain alleys and runways therein; that said runways proceed from said first floor upward by means of inclined planes to the second floor where the automobiles of the customers were stored; that said inclined planes, said runways, and the floors were paved with cement and were dark and unlighted; that in order for a customer to go to the said office and to his automobile or to depart therefrom it was necessary to cross or be upon places where automobiles were driven and operated on said first floor; that on said day the plaintiff stored his automobile for hire with the defendant in said garage that thereafter on said day the plaintiff came to said garage for his car which had been stored on the second floor and after paying said storage charge at said office proceeded from said office along one of said runways toward his said automobile; that while said plaintiff was on said runway the defendant, through its employee and servant, who was then acting within the scope of his employment by the defendant, "carelessly and negligently drove another automobile down said inclined plane and on and in said runway leading to Market Street and upon and against this plaintiff, thereby causing the injuries hereinafter complained of; plaintiff further alleges that he does not know the name of said employee and servant of defendant, by whom, as beforesaid, the defendant so negligently and carelessly drove said automobile down said incline plane upon and against this plaintiff. . . . That said negligence of said defendant is more specifically described as follows, to-wit: That then and there the defendant acting as aforesaid, negligently operated said other automobile down said inclined plane and upon said runway and against plaintiff as aforesaid without having such automobile under the control of the defendant, acting as aforesaid; that the defendant acting as aforesaid then and there negligently operated said other automobile as aforesaid toward and upon plaintiff, without giving any warning of the approach of said automobile; that defendant then and there negligently failed to have a guard and director of traffic on said first floor and inclined plane, to direct traffic therein and to warn persons therein of the approach of automobiles; that defendant negligently constructed and maintained said first floor without providing places for customers to enter and take possession of their automobiles, without crossing and entering in and upon said runway proceeding to Market Street as aforesaid; that defendant negligently failed to maintain lights and lighting facilities on said first floor to enable persons therein to see the approach of automobiles therein and to enable defendant's employees to see persons on foot therein; that defendant acting as aforesaid, when plaintiff called for his automobile as aforesaid, negligently placed such automobile in said runway proceeding to said Market Street, at a place where other automobiles were then and there operated on said runway; that defendant acting as aforesaid, when plaintiff called for his automobile as aforesaid, negligently placed plaintiff's automobile at a place in said runway to Market Street where plaintiff was compelled to and did walk on such runway to enter his said automobile. That each of said acts of negligence on the part of defendant was the sole and proximate cause of the injuries...