Morgan v. Reneer

• Decision Date: 30 November 1970
• Docket Number: No. 1,No. 1069A182,1069A182,1
• Citation: 148 Ind.App. 90,264 N.E.2d 71
• Parties: Gary L. MORGAN, Appellant, v. Judy RENEER, by her father and next friend, James Reneer, Robert E. Hunt, Appellees
• Court: Indiana Appellate Court

Page 71

264 N.E.2d 71

148 Ind.App. 90

Gary L. MORGAN, Appellant, v. Judy RENEER, by her father and next friend, James Reneer Robert E. Hunt, Appellees.

No. 1069A182.

Appellate Court of Indiana, Division No. 1.

Nov. 30, 1970.

Rehearing Denied Jan. 13, 1971.

Hart, Ledford & Bell, Vincennes, for appellant.

Sydney L. Berger, Evansville, for appellees.

LOWDERMILK, Chief Justice.

This is an action brought under the guest statute by plaintiff-appellee by her next friend against defendant-appellee Robert E. Hunt and defendant-appellant Gary L. Morgan for damages for personal injuries sustained by plaintiff-appellee as the result of a collision of an automobile in which plaintiff-appellee was a guest passenger and which was driven by the defendant-appellant Gary L. Morgan, which car collided head-on with an automobile operated by defendant-appellee Hunt, as Hunt approached the crest of a levee and at a time after appellant Morgan had crossed over the levee and was proceeding down the other side. Trial was by jury, which returned a verdict for appellee in the amount of $65,000 against appellant Morgan, and which returned its verdict for the defendant-appellee Robert E. Hunt. Robert E. Hunt is not a party to this appeal.

At the conclusion of plaintiff-appellee's evidence the defendant-appellant filed written motion for an instruction directing a verdict for the appellant, which motion was by the court overruled. Appellant then filed his written motion for instructions numbered A--1 to A--5, both inclusive, withdrawing from the jury's consideration each of the acts of wanton and reckless conduct alleged in rhetorical paragraph 9 of appellee's third amended complaint. The court overruled the motion of appellant and refused to give instructions numbered A--1 to A--5.

Appellant introduced his evidence, after which he filed his motion for a directed verdict, together with tendered Instruction No. B, which motion was overruled by the court. Appellant then filed written motion for Instructions B--1 to B--4, both inclusive, withdrawing from the jury's consideration the acts of wanton misconduct alleged in paragraph 9 of appellee's third amended complaint, which motion was by the court overruled and the tendered instructions refused.

Appellant timely filed his motion for a new trial, the grounds of which are as follows:

1. The verdict of the jury is not sustained by sufficient evidence;

2. The verdict of the jury is contrary to law;

3. Errors of law occurring at the trial, each separately and severally,

which errors are set out and are that the court erred in overruling the motion for the directed verdict at the close of plaintiff-appellee's evidence and at the close of all the evidence and the court erred in refusing to give to the jury instructions tendered at the close of plaintiff-appellee's evidence and at the close of all the evidence to withdraw certain issues from the consideration of the jury.

Appellant's sole assignment of error is that the court erred in overruling appellant's motion for a new trial.

Under the record before us, the action of the trial court was proper only if all the evidence favorable to the appellee and all the inferences which might reasonably have been drawn therefrom were sufficient to establish wanton misconduct on the part of the appellant Morgan. Clouse, etc. v. Peden (1962), 243 Ind. 390, 186 N.E.2d 1.

In Indiana guest statute (Burns' Ind.Stat. § 47--1021), with which we are here concerned, reads as follows:

'Guest of owner or operator--Right to damages.--The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, while being transported without payment therefor, in or upon such motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wanton or wilful misconduct of such operator, owner, or person responsible for the operation of such motor vehicle.'

On December 4, 1966, appellee was riding in the right front seat of a Mustang automobile operated by the appellant, with another young couple in the rear seat, for about two hours in and around the vicinity of Owensville, Indiana.

Our mathematical calculation, after a search of the transcript, leads us to believe that, at this time, appellant was about 17 1/2 years of age. The appellee was 16 years, or over, and still in light school.

The cruising speed during this time was estimated by the witness Judith Ann Cummings, who was riding in the rear seat, to be something less than 40 miles per hour, which she says is her best guess.

Appellant was driving on Road 1500 West, which runs in a north-south direction and was a gravel road in the vicinity of Owensville, Indiana, which has three lanes made from tire tracks. One lane is in the center, and another lane on either side of the center lane, with loose gravel between the three lanes. As the road approached the levee, and at the approach to the levee, the lanes faded out and the road over the levee was a flat gravel surface, 21 feet in width. The top of the levee is a flat surface of about 10 feet in width in a northsouth direction. The record is silent as to the exact height of the levee, but the levee is of sufficient height that one approaching the same cannot see over it and a car must be completely on the flat top of the levee and approaching the opposite side before persons in an automobile coming upon the levee approach from an opposite direction see and automobile.

There is a gravel road running many miles either direction from Road 1500 West on the top of the levee. There are also roads similar to Road 1500 West which cross the levee at divers points. All roads crossing the levee are, for the most part, of the same design and material.

Appellant, by his own evidence, stated that he approached said levee driving between 30 and 40 miles per hour. At some point on the highway, prior to the collision, appellee told appellant 'Wouldn't it be awful or terrible if a car was coming up the other side.'

Appellant's evidence was that he continued up the middle of the traveled portion of the road and across the levee at a speed of 25 to 30 miles per hour and was traveling about 30 miles per hour when he created the far side. Appellant was the only witness who testified that while appellant was crossing the flat top portion of the levee, in order to avoid large rocks in the highway which were in the path of his left wheels, he abruptly cut his car to the left and did not see the approaching car of appellee. Hunt, until after he had so swerved his car and cut it to the left. At the time appellant cut his car to the left its back end whipped to the right and he immediately continued forward on the left half of the traveled portion of the highway, colliding head on with Mr. Hunt's Mustang automobile, the cars striking each other with right front against right front. After appellant observed the Hunt vehicle he is of the opinion he hit his brakes and that was what caused his car to skid to the left. There is no evidence that we can find in the record that appellant did actually apply his brakes before the collision. At the time he saw Hunt's vehicle he was over the crest of the levee and was going down the side on which Mr. Hunt was approaching.

Appellee, Hunt, an eye witness, put appellant's speed as he topped the levee at 50 miles per hour and placed appellant's car in the center of the road at that time. Appellant could not see oncoming traffic until he was across the top of the levee, and at which time the road and vehicles approaching thereon became visible to him, if he were keeping a lookout ahead.

The photographs admitted into evidence and exhibited to the jury were mute evidence of the speed of appellant's car and the extent of damage to the respective vehicles was evidence as to the speed of appellant's automobile and also evidence of appellant's failing to keep a reasonable lookout and failing to have his automobile under reasonable control. Such evidence and the inferences that a jury might legitimately draw therefrom are proper matters for the jury to consider in determining the acts of wanton conduct as charged in appellee's complaint.

Our Supreme Court, in Samuel-Hawkins Music Co., Inc. v. Ashby (1965), 246 Ind. 309, 205 N.E.2d 679, said:

'* * * There was also much photographic evidence by both parties showing the scene as it existed and vividly demonstrating the view each driver had at the time. The collision occurred in broad daylight at 2:30 in the afternoon. The jury unquestionably under this evidence was properly permitted to consider the question of negligence on the part of appellant truck driver in failing to keep a lookout. Lookout as well as speed, under the authorities, may be established by proof of physical facts and circumstances. 3 I.L.E., Automobiles, § 115, p. 467.' (Our emphasis.)

In Gary Fish Co. v. Leisure (1952), 122 Ind.App. 190, 102 N.E.2d 209, Transfer denied February 27, 1952, the court said:

'* * * The extent of the damage to the Kacena car was evidence of the speed of appellant's truck. The photograph was germane as to both of these circumstances and issues and was, therefore, admissible.'

Also, see Whitaker v. Borntrager (1954), 233 Ind. 678, 122 N.E.2d 734.

In our opinion, the physical damage to the automobiles, as displayed by the exhibits, was severe enough that the jury could reasonably infer the collision took place with one or both cars traveling at a high rate of speed.

Where the evidence is conflicting, in determining whether a finding in favor of appellee is warranted, only the uncontroverted facts and the evidence most favorable to appellee and the favorable inferences that may be drawn therefrom can be considered on appeal. Pontious v. Littleton (1970), Ind.App., 255 N.E.2d 684.

Appellant had knowledge, prior to his wreck, that there had been several close mishaps and...