Moore v. Moriarty

Decision Date04 February 1981
Docket NumberNo. 3-1079A267,3-1079A267
PartiesNeil E. MOORE, Jr., Defendant-Appellant, v. John L. MORIARTY, Plaintiff-Appellee.
CourtIndiana Appellate Court

Page 779

415 N.E.2d 779
Neil E. MOORE, Jr., Defendant-Appellant,
John L. MORIARTY, Plaintiff-Appellee.
No. 3-1079A267.
Court of Appeals of Indiana, Third District.
Feb. 4, 1981.

Page 780

Tom F. Hirschauer, Logansport, for defendant-appellant.

Frederick E. Rakestraw, Brown, Brown & Rakestraw, Rochester, for plaintiff-appellee.


Appellant, Neil E. Moore, Jr., appeals from a judgment ordering him to pay $22,500 to the appellee, John L. Moriarty, for damages resulting from personal injuries sustained by Moriarty while employed by Moore. Trial was conducted before the bench, and special findings and conclusions of law were entered. Moore's challenges to the trial court's findings may be summarized as follows:

1. Whether the court erred in finding that Moore was negligent in his failure to brake the truck prior to its pulling the tractor over; and

2. Whether the damages awarded were excessive.

We affirm.


On November 29, 1974, Moriarty was employed by Moore as a farm laborer. Moore owned a Ford truck which was loaded with grain, but was not operable at that time.

Page 781

Since it was imperative that the grain be delivered to an elevator, the parties decided to pull the loaded truck to a nearby elevator by the use of a tractor. Working together, they attached the truck to the tractor by means of a 16 to 20 foot log chain such that the tractor could pull the truck. Since the two vehicles were joined only by a collapsible chain, stopping was accomplished by the tractor decelerating and the truck braking to keep the chain tight. The parties proceeded to the elevator with Moriarty driving the tractor and Moore steering and braking the truck.

On returning from the elevator, the tractor struck a chuckhole causing damage to the steering mechanism and leaving Moriarty unable to control it. Although Moriarty was able to keep the tractor on the road for approximately two to five seconds, the tractor soon veered to the right off the roadway into an embankment. Before Moore was able to stop the truck, it rolled past the tractor, pulling the chain taut such that the tractor overturned. Moriarty suffered a dislocated right hip and injuries to his knee as a result of either being thrown from the tractor or jumping from it as it turned over.

As a result of this accident, Moriarty was hospitalized for twelve days although no surgery was performed and his hip was not placed in a cast. He was on crutches for two months, continued to have constant pain in his right hip and knee, and was unable to work. In March 1975, Moriarty again dislocated his hip when he fell while attempting to climb a four foot wire fence to get to a family gathering in a nearby woods. After this accident, he underwent surgery followed by a lengthy rehabilitation involving complete bed rest and several months on crutches. He suffered severe disability for approximately one and a half years and at the time of trial still did not have full use of his right leg.


Moore bases his assertion that the court erred in finding him negligent upon three grounds. First, that the evidence does not support the court's finding that he was negligent in failing to brake the truck, but rather the record indicates the accident was caused by the truck hitting a chuckhole. Second, that the doctrines of "common knowledge" and assumption of the risk operate to absolve Moore of any liability for the accident. Third, that the court held Moore to an unreasonably high degree of care in light of the doctrine of sudden emergency.

Moore's initial claim questions the sufficiency of the evidence to support the court's findings. We remind appellant that this court can neither weigh the evidence nor determine credibility of witnesses. Rather, we are limited to a consideration of only the evidence and reasonable inferences therefrom which support the judgment of the trial court. Kruse, Kruse & Miklosko v. Beedy (1976), 170 Ind.App. 373, 353 N.E.2d 514. Indiana Rules of Procedure, Trial Rule 52(A) mandates that a trial court's judgment be left undisturbed unless we conclude that the court's findings are "clearly erroneous." Such a conclusion may be reached only when on the entire record the reviewing court is left with the definite and firm conviction that a mistake has been committed. Smith v. City of South Bend (1980),...

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  • Clem v. United States, S 83-430.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 29, 1985
    ...N.E.2d at 473; Colaw, 450 N.E.2d at 1029; Antcliff v. Datzman, (1982) Ind.App., 436 N.E.2d 114, 120, trans. denied; Moore v. Moriarty, (1981) Ind.App., 415 N.E.2d 779, 782; Kroger, 177 Ind.App. at 409, 379 N.E.2d at 1008. "By definition ... the very essence of incurred risk is the conscious......
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    • August 24, 1982
    ...outrageous as to impress the court at first blush with its enormity. State v. Bouras, (1981) Ind.App., 423 N.E.2d 741; Moore v. Moriarty, (1981) Ind.App., 415 N.E.2d 779. Posey asserts that the verdict is clearly excessive in light of the small amount of special damages: $324 in hospital an......
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    • December 14, 1983 with a "definite and firm conviction that a mistake has been made." Merchants National Bank, 441 N.E.2d at 512; Moore v. Moriarty, (1981) Ind.App., 415 N.E.2d 779, 781; Arnold v. Dirrim, (1979) Ind.App., 398 N.E.2d 442, 446; Young, 178 Ind.App. at 705, 368 N.E.2d at 2. Our review leaves ......
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    • Court of Appeals of Indiana
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    ...for mishap. Incurred risk contemplates acceptance of a specific risk of which the plaintiff has actual knowledge. Moore v. Moriarty, (1981) Ind.App., 415 N.E.2d 779. A defendant has the burden of proving incurred risk. Ind.Rules of Procedure, Trial Rule 8(C); State v. Collier, (1975) 165 In......
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