Mayer v. Mellette

• Decision Date: 28 November 1916
• Docket Number: No. 9111.,9111.
• Citation: 114 N.E. 241,65 Ind.App. 54
• Parties: MAYER v. MELLETTE.
• Court: Indiana Appellate Court

65 Ind.App. 54

114 N.E. 241

MAYER

v.MELLETTE.

No. 9111.^*

Appellate Court of Indiana, Division No. 2.

Nov. 28, 1916.

Appeal from Superior Court, Marion County; Clarence E. Weir, Judge.

Action by Edna Mellette against Edward L. Mayer. Judgment for plaintiff, and defendant appeals. Affirmed.Harold Taylor, of Indianapolis, for appellant. Russell Willson and Romney L. Willson, both of Indianapolis, for appellee.

CALDWELL, J.

Appellee's complaint is, in substance, as follows: About 10 o'clock on the morning of May 25, 1912, she was driving a small automobile westward along the north side of Twenty-fifth street, approaching its intersection with Delaware street in the city of Indianapolis, intending to turn south into and along the latter street. At the same time appellant was driving a large automobile northward along the center of Delaware street, approaching its intersection with Twenty-fifth street, and intending to drive thence north along the former street. Appellee, having reached the center of Delaware street, was in the act of making a turn southward to reach the west side of the street, whereupon appellant approached, driving his car at the negligent and unlawful speed of 25 miles per hour, and as a consequence appellee was unable to complete the turn, but to escape a collision was compelled to, and did, accelerate, as her car was headed southwest, and as a result her car was driven into contract with the curb and a telephone pole, standing at the southwest corner of the intersection, whereby appellee's car was damaged, and she suffered certain physical injuries specifically described in the complaint. The complaint charges appellant with negligence in speed, and in failing to turn his car to the east side of the street. The sufficiency of the complaint is not questioned. Answers having been filed and the case brought to issue, a trial resulted in a verdict in appellee's favor for $700, on which judgment was rendered.

Appellant urges that the court erred in overruling his motion for judgment on the answers returned by the jury to interrogatories submitted. These answers disclose the following facts: Twenty-fifth street is 24 feet wide from curb to curb and 50 feet from property line to property line. The corresponding dimensions of Delaware street are 30 feet and 50 feet, and both streets are in a closely built up section of the city. A brick storeroom extended to each property line at the northeast corner of the intersection. The front wall of a dwelling house at the southeast corner of the intersection extended to within 28 feet, and its front porch to within 20 feet, of the Delaware street curb. Appellee's speed approaching Delaware street along the north side of Twenty-fifth street was about 12 miles per hour. On entering the latter she reduced her speed to 8 miles per hour. Immediately after passing the line of the porch, she saw appellant's car approaching at a point about 100 feet south of Twenty-fifth street. There was nothing to prevent her from seeing it continuously thereafter until it passed in front of her car. It passed, however, to the rear or east of her car, colliding with it slightly. Appellee began to make the turn southward as she entered Delaware street, rather than after she reached the center, and, having commenced to make the turn, she did not thereafter change the course of her car, made no effort to stop it, and thereby avoid colliding with the pole that stood a few feet southwest of the southwest corner of the intersection, but, on the contrary, accelerated and ran into the pole, and thereby damaged her car. There was nothing to prevent her from driving west across the intersection and along Twenty-fifth street, except that her car was headed southwest. A car such as appellee was driving, when running 12 miles per hour, could be stopped in 6 or 7 feet. Appellee purchased her car May 14, 1912. Prior to the purchase, she had had four weeks' experience in driving a car.

[1][2][3] Appellant, in support of his motion, contends that the facts found establish affirmatively that the accident was caused proximately by appellee's contributory negligence. It is not, and cannot consistently be, argued that the facts found acquit appellant of negligence. It must therefore be assumed in considering such motion that appellant was guilty of negligence as charged and as determined by the general verdict. There is no finding that appellee knew at the time when she saw appellant approaching that he was driving recklessly, if such were the case. It should therefore be assumed, if necessary to sustain the general verdict, that she acquired such knowledge when appellant's car had reached a point near appellee's car, thus creating an emergency involving a possible collision and consequently appellee's safety. When appellee's car was 20 feet from the east line of the intersection, appellant's car was 100 feet south of its south line. As appellee was much closer to the intersection than appellant, and the record disclosing no ordinance or regulation to the contrary, appellee apparently had the right of way, and, in the absence of an indication that it was imprudent to do so, she was authorized to go forward. Elgin Dairy Co. v. Shepherd, 183 Ind. 466, 474, 108 N. E. 234, 109 N. E. 353.

She did go forward, reducing her speed as, under ordinary circumstances, would be proper, considering that she was entering an intersection, and that it was her purpose to turn to the south. It is true that under some circumstances, it would have been her duty to stop her car rather than enter the intersection, as if the situation were such as to impress a reasonably prudent person that otherwise a collision would have been likely. The answers here, however, do not compel such a presumption.

[4] If the length of appellee's car be added to the breadth of appellant's and the sum deducted from the width of the street between curbs, the portion of the street available for clearance purposes is approximately ascertained. The car dimensions, however, are not found. Such available space was divided, a part being on the east side and a part on the west side, after appellee had entered the intersection. Appellee by proceeding increased the clearance on the side of the street to which appellant should have guided his car in passing, and it would therefore seem that she properly moved forward. Moreover, had appellee merely proceeded at a reduced speed, and had appellant continued at the alleged speed, by calculation it may be determined that a disastrous collision would have been probable. Apparently, therefore, she properly accelerated. It is a reasonable assumption under the answers to the interrogatories, aided by presumptions that must be indulged in view of the allegations of the complaint, that appellant's negligence gave rise to an emergency wherein appellee was compelled hastily to elect between appellant's car probably colliding with her car, and driving her own car towards the curb and pole. She chose the latter course. If her conduct under the circumstances and in view of the emergency was that of a person of ordinary prudence, she was not guilty of contributory negligence. Indiana, etc., Co. v. Love, 180 Ind. 442, 99 N. E. 1005;McIntyre v. Orner, 166 Ind. 57, 76 N. E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359, 8 Ann. Cas. 1087. The facts found in answer to the interrogatories present a case properly for the jury on the issue of contributory negligence. The jury by the general verdict determined that issue in appellee's favor. The court did not err in overruling the motion.

[5] Appellant challenges the sufficiency of the evidence. There was evidence to sustain the facts returned in answer to the interrogatories and other evidence in some respects contradictory, however, to the following effect: Appellant approached the intersection, driving along or west of the center line of the street his speed being 35 to 40 miles per hour. He was approaching in a direct line towards appellee's car as the latter was making the turn, whereupon she accelerated and drove her car into the pole. Appellant's car struck the rear part of the left rear fender of appellee's car, damaging it slightly. Appellant's car came to a stop in the center of the street some distance north of the intersection. There was evidence, not accepted by the jury as true, however, that appellant's car passed in front of appellee's car, and in so doing that it was guided to...