Metz v. Madison
| Decision Date | 30 June 1971 |
| Docket Number | No. 370A31,No. 1,370A31,1 |
| Citation | 271 N.E.2d 197,149 Ind.App. 157 |
| Parties | Laurie J. METZ, Appellant, v. George C. MADISON, Appellee |
| Court | Indiana Appellate Court |
Robert E. Peterson, Rochester, J. Patrick Smith, Smith & Smith, LaPorte, for appellant.
William L. Morris, Rochester, Leon R. Kaminski, Newby, Lewis & Kaminski, LaPorte, for appellee.
STATEMENT OF THE CASE AND FACTS--This is an appeal from a common intersection 'fender bender' collision with personal injuries.
Laurie J. Metz, Plaintiff-Appellant, (Metz) sued George C. Madison, Defendant-Appellee, (Madison) to recover damages for injuries sustained as a result of an automobile collision which occurred in LaPorte, Indiana. The evidence most favorable to Madison as Appellee indicates that Metz was proceeding in a southerly direction on Monroe Street approaching the intersection of Monroe and Maple Streets when he observed what appeared to be a white automobile headed west and stopped at the stop sign regulating traffic going in a westerly direction on Maple Street. Passing through the intersection, he observed to his left another automobile about to strike him, which did then actually collide with the left rear fender of his automobile. This was the automobile driven by Madison.
Following the collision, Metz was jarred loose from the steering wheel and lost control of his car which then continued in a southeasterly direction until it came to a complete stop against a church.
There is conflict in the evidence as to the exact speed which Metz was traveling. He testified during the trial and in his deposition that he was traveling between 20 and 25 miles an hour. However, a police officer who interviewed him at the hospital subsequent to the accident testified that Metz told him that he was traveling at a speed of 30 miles an hour. The area was not posted with any definite speed limit.
The question of speed is critical here, in that if Metz was traveling 20 miles an Metz further testified that he knew that the particular intersection was a busy intersection and a bad intersection. Following the accident, two police officers measured the distance from the debris to the point where the car stopped. At the trial they testified this distance was 160 feet.
hour and the zone in which the accident occurred was a residential area, then the was within the speed limit. The evidence most favorable to Madison indicates, however, that the district in which the accident occurred was a business district where the speed limit is restricted to 20 miles an hour and any excess over that speed limit is prima facie evidence that the driver was not using due or reasonable care.
Trial was to jury, and after all evidence was submitted, Metz moved to withdraw the issue of contributory negligence. The motion was subsequently overruled, and the jury returned a verdict for Madison. Metz then filed a motion for a new trial, which was overruled, and he appeals from the overruling of the motion for new trial.
ISSUES: Seven specifications of error are listed as grounds for a new trial. Four of the seven specifications of error were not argued nor supported by authority and are thus waived under Rule AP. 8.3(A)(7).
The remaining three are:
1. The verdict of the jury is contrary to the law.
2. The verdict of the jury is not sustained by sufficient evidence.
3. Error of law occurring at the trial as follows:
The Court erred in overruling plaintiff's motion to withdraw the issue of contributory negligence made at the close of all the evidence.
Number 1 presents no question. The specification that the verdict is contrary to law will be considered only where the evidence is without conflict and can lead to the one conclusion and the trial court has reached an opposite conclusion citing Pokraka v. Lummus Co. (1951) 230 Ind. 523, 104 N.E.2d 669. The evidence in the case before us is in conflict and thus we have no basis to review the trial proceedings on this specification of error.
We are thus presented with specifications 2 and 3 which pose the following two questions:
1. Was there sufficient evidence to justify submitting the issue of contributory negligence to the jury?
2. If Metz was guilty of contributory negligence was there sufficient evidence to show that the contributory negligence was a proximate cause of the accident?
Metz argues that no evidence exists to show that he was guilty of contributory negligence and further submits that even if he were guilty of contributory negligence, his acts were not the proximate cause of the accident and as such would not preclude him from recovering.
Madison's argument is precisely to the contrary.
The affirmative defense of contributory negligence asserted by Madison was based upon the theory that Metz was in violation of I.C. (1971) 9--4--1--57, Ind.Ann.Stat. § 47--2004 (Burns' 1965 Repl.) at the time the accident occurred. The statute reads in pertinent part as follows:
(c) Prima facie speed limits. Where no special hazard exists, the following speeds shall be lawful, but any speed in excess of said limits shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful:
(1) Twenty (20) miles per hour in any business district. * * * (d) The driver of every vehicle shall, consistent with the requirements in subsection (a), drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic by reason of weather or highway conditions.
Conflicting evidence was brought out during the trial concerning the speed Metz was traveling. Metz himself testified on two different occasions that he was traveling 20--25 m.p.h., but a police officer who...
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