Merriman v. Kraft

• Decision Date: 15 July 1969
• Docket Number: No. 769S159,769S159
• Citation: 253 Ind. 58,18 Ind.Dec. 218,249 N.E.2d 485
• Parties: Carita MERRIMAN, Appellant, v. Marion H. KRAFT, Appellee.
• Court: Indiana Supreme Court

Page 485

249 N.E.2d 485

253 Ind. 58

Carita MERRIMAN, Appellant, v. Marion H. KRAFT, Appellee.

No. 769S159.

Supreme Court of Indiana.

July 15, 1969.

Robert H. Hahn, Evansville, for appellant; Bamberger, Foreman, Oswald & Hahn, Evansville, of counsel.

Jennings & Wilson, Ross E. Myers, Evansville, for appellee.

ARTERBURN, Judge.

This case comes to us on transfer from the Appellate Court of Indiana. (See 242 N.E.2d 526 for opinion of Appellate Court.)

This action was brought by plaintiff-appellee Kraft's complaint in three paragraphs which sought damages for personal injuries from the appellant-Merriman and Firestone Tire and Rubber Company. The trial was by jury which returned a verdict in favor of appellee and against appellant in the sum of Thirty Thousand Dollars ($30,000). Firestone was relieved of any liability by the jury's verdict. Appellant filed a motion for new trial, which was overruled, and judgment was entered accordingly.

The complaint alleged that at approximately 10:30 p.m. on July 15, 1964, the appellee was walking easterly on the public sidewalk abutting Covert Avenue in Evansville, Indiana. Appellant was operating an automobile westerly on Covert Avenue when she suddenly and without warning drove the automobile over the curb and onto the sidewalk, injuring the appellee.

Paragraph One of the complaint sought recovery against both defendants on the basis of negligence. Appellant was allegedly negligent in driving at a high and dangerous rate of speed, in failing to keep a lookout, in failing to apply the brakes, in failing to have reasonable control of the steering and in failing to sound her horn. Firestone was alleged to be negligent in that the car driven by appellant was equipped with a tire manufactured and sold by them, which tire had been purchased approximately one week prior to the accident and had been used on the vehicle in normal operation in the manner reasonably intended. The appellee further alleged that when the car operated by the appellant reached a particular point in the street the tire '* * * blew out, collapsed, and went completely flat. * * * That the collapse of said tire was a proximate cause of the said automobile traveling up and over the curb and onto the sidewalk, thereby injuring the plaintiff.'

Paragraph Two of the complaint asks for recovery against the appellant on the theory of res ipsa loquitur. The complaint 'further alleges that the automobile which caused the plaintiff's injuries as aforesaid, was at all times herein mentioned under the exclusive and sole control of the defendant, Carita Merriman, and that the plaintiff had nothing whatsoever to do with the control and operation of said automobile and further had absolutely no knowledge regarding the operation and control of said vehicle.'

Paragraph Three of the complaint sounded in strict liability and concerned only Firestone Tire and Rubber and does not concern us in deciding the questions raised on appeal.

Appellant first argues that the trial court erred when the cause was submitted to the jury under the doctrine of res ipsa loquitur. It is appellant's position that since the evidence tended to establish that the accident could have resulted from more than one cause, i.e., negligence of appellant and/or a defective tire manufactured and sold by Firestone, the doctrine of res ipsa loquitur does not apply.

With appellant's contention we can not agree. To assert the doctrine of res ipsa loquitur it is not necessary to prove that the only cause of the accident was defendant's negligence. To the contrary it is said:

'* * * the physical cause of the injury and the attendant circumstances indicate such an unusual occurrence that in the light of ordinary experience it would probably not have happened if those who had the management or control of the causative instrument had exercised proper care.' (Our emphasis)

21 I.L.E., Negligence, § 163, p. 401.

It is therefore not necessary for a plaintiff to exclude every other possibility other than the defendant's negligence as a cause. This principle has been recognized in Indiana.

'There is no reason in law why a plaintiff may not offer such evidence as may be available tending to show specifically the items of negligence and still rely upon the inference also permitted under res ipsa loquitur. A number of different causes or inferences may be thus left to the final determination of the triers of the facts.' New York, Chicago, etc., R.R. Co. v. Henderson (1957), 237 Ind. 456, 470, 146 N.E.2d 531, 539, 147 N.E.2d 237; Seneris v. Haas (1955), 45 Cal.2d 811, 291 P.2d 915, 53 A.L.R.2d 124.

Other jurisdictions have held that when a car leaves the street and injures a pedestrian on the sidewalk, the doctrine of res ipsa loquitur applies.

'(b) Availability of doctrine.

Among the various types of automobile accidents there is at least one in which the res ipsa loquitur doctrine has been applied with appreciable consistency. Where a motor vehicle leaves the roadway without a prior collision and thereby causes injury or damage, the courts, as a general rule, are prepared to draw an inference of negligence from the occurrence assuming, of course, that all the other conditions of applicability are met. Even those cases in which the doctrine was held inapplicable in the particular circumstances support the general proposition that the doctrine is available in this particular type of automobile accident by basing the result reached on one of the commonly accepted grounds of inapplicability, thus permitting the conclusion that if the stated grounds of inapplicability were eliminated the doctrine would have been applied.' 79 A.L.R.2d 18.

'25. Owner or driver of motor vehicle and third person.

(a) Generally.

The underlying reason for the application of the res ipsa loquitur doctrine, namely, that the chief evidence of the true cause of the accident is practically accessible to the defendant but inaccessible to the plaintiff, gives the doctrine particular importance in those cases where a motor vehicle runs upon a sidewalk and strikes a pedestrian who is rightfully there, since in such situations the injured person is not in a position to know the cause of the mishap while the one in control of the instrumentality which causes the injury is or should be in a position to know, and since such an occurrence does not usually happen in the absence of negligence on the part of the one in control of the vehicle.' 79 A.L.R.2d 77.

The present case demonstrates the intended use of the doctrine of res ipsa loquitur. A pedestrian who is standing on a public sidewalk and struck by a car is entitled to have the doctrine applied when he shows that the instrumentality that caused his injury was under the exclusive control of the appellant and shows further that the accident was the result of appellant's lack of reasonable care. The only additional requirement placed on the appellee-plaintiff is that he be without information as to the exact cause of the accident. This requirement was satisfied by Paragraph Two of his complaint.

The appellant alleges that even if the doctrine of res ipsa loquitur did apply, such availability was lost when the appellee pled and introduced evidence of a tire blowout. With this contention we are likewise unable to agree. While jurisdictions have differed on this issue, the rule in Indiana as expressed by the case of New York, Chicago & St. Louis R.R. Co. v. Henderson, supra, is that the appellee may still avail himself of the doctrine even though he pleads and offers evidence of specific acts of negligence under another paragraph of complaint.

'It is next argued that regardless of the allegations in the complaint if the plaintiff offers evidence of specific acts of negligence this will exclude res ipsa loquitur from the case. Such is not necessarily true since the facts still speak for themselves.' New York, Chicago & St. Louis R.R. Co. v. Henderson, supra, 237 Ind. at 469, 146 N.E.2d at 539.

The appellant next cites two cases in support of the proposition that the tire blowout removes the case from the application of res ipsa loquitur. Both cases can be distinguished from the present case on the facts.

In Klein v. Beeten (1919), 169 Wis. 385, 172 N.W. 736, 5 A.L.R. 1237, the court held the doctrine of res ipsa loquitur did not apply where the accident could have occurred due to a blowout of the left front tire. However, the case does contain the following language:

'* * * It is claimed on the part of the plaintiff that a blow-out could not have caused the accident unless the car was going at an excessive rate of speed. There is no proof of that fact in the record, and we cannot take judicial notice that a blow-out of the front tire of a Ford automobile running at 15 miles an hour could not produce an accident such as this. * * *' Klein v. Beeten, supra, 172 N.W. at 737.

In the case before us there was evidence introduced that the tire not only hit something with a terrific force but that even if the car had suffered a blowout of a rear tire at the speed appellant stated she was traveling, the blowout would not have caused her to lose control of her vehicle. This evidence was presented to the trial court through the testimony of John Cox, an engineer employed by Firestone Tire and Rubber Company.

'Q. What was your conclusion then, Mr. Cox, as to the cause of the condition of this tire which you saw upon your examination?

'A. My opinion is that the tire hit an object with terrific force which was of such shape that it cut as well as impacted the sidewall of the tire.

'Q. All right, and in the course of making these tests you drove the car under these conditions, would you describe to the jury the effect of the steering wheel as you had it in your hand or with your finger on it at the time this dynamite cap exploded in the left rear wheel?

'A. I could detect no reaction on the wheel at all.

'Q. And what did it do, if anything, to the car?

'A....