Munson v. Rupker, 11796.

Decision Date03 June 1925
Docket NumberNo. 11796.,11796.
Citation148 N.E. 169,96 Ind.App. 15
PartiesMUNSON v. RUPKER.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Morgan County; A. M. Bain, Judge.

Action by Samuel A. Munson against Herman H. Rupker. Judgment for defendant, and plaintiff appeals. Reversed, with directions.

Chas. T. Hanna, and Thos. A. Daily, both of Indianapolis, and McNutt & McNutt, of Martinsville, for appellant.

Fenton, Steers, Herbst & Klee, of Indianapolis, for appellee.

McMAHAN, J.

Complaint by appellant in two paragraphs to recover damages on account of injuries received while riding in an automobile owned and driven by appellee. The first paragraph alleges that appellee invited appellant to become his guest and ride in defendant's automobile from Indianapolis, Ind., to Danville, Ill.; that appellant accepted the invitation, and that with others they started to make the trip; that while traveling on a highway west of Covington appellee drove the automobile in a careless manner at a speed of 40 miles an hour; and that on account of such excessive speed, appellee negligently lost control of the automobile and ran off the road into a ravine, causing the automobile to turn over and injure appellant.

The second paragraph charges that appellee negligently drove the automobile at a speed of 40 miles an hour, “and while so driving said automobile he carelessly and negligently attempted to turn to the right upon a highway then and there running north and south, and on account of the speed of said automobile defendant could not then and there, and did not then and there, successfully make said turn, and carelessly and negligently drove said automobile off of both said highways into a ravine about 20 feet deep, causing said automobile to turn over.”

The issues being closed by a general denial, there was a trial by jury, which resulted in a verdict and judgment for the defendant, from which the plaintiff appeals. The error assigned relates to the overruling of the motion for a new trial.

The accident which resulted in appellant's injury occurred Saturday, November 6, 1920. Appellant and Mr. Summers, who was riding in the rear seat of the automobile by the side of appellant at the time of the accident, were guests of appellee and his wife at their home the Sunday next prior to the day of the accident. Each of them testified that while at appellee's house on that Sunday appellee and his wife told them they were going to Danville, Ill., the following Saturday to visit Mrs. Rupker's parents and invited appellant and Mr. Summers to go along with them. Appellee and his wife each deny having given them any such invitation. Their testimony in substance is that appellant and Mr. Summers were self-invited guests on the trip to Danville.

Appellant contends that the court erred in giving and in refusing to give certain instructions. In answer to these contentions appellee says the evidence shows that appellant was guilty of such contributory negligenceas bars recovery, and that the giving or refusal to give instructions would not, even though erroneous, be reversible error.

The evidence bearing on the question of contributory negligence is in substance as follows: Mr. and Mrs. Rupker, with their small child, and Mr. Summers left the Rupker home about 2 p. m., and drove to appellant's office, where he got into the automobile. After stopping at a store for a few minutes, and at a filling station to get some gasoline, they started out on the Crawfordsville road. They stopped before leaving Indianapolis at Emericksville bridge, leaving there some time between 3 and 3:30, and reaching Crawfordsville about 5 p. m. where they stopped long enough for Mr. Rupker to get out and buy a flashlight. While at Crawfordsville appellant got out of the automobile, as he says, to “stretch himself.” They stopped once between Crawfordsville and Covington, when appellant got out to inquire about the road to Covington. They stopped at Covington long enough to inquire the way. No one got out of the automobile at Covington. The accident took place 4 miles west of Covington. It was dark at the time. The lights on the automobile had been turned on before they reached Covington.

Appellant testified that before reaching Covington, and while traveling a distance of 80 miles, he called appellee's attention to the speed of the automobile eight to twelve times; that on each of such occasions appellee was running about 35 or 40 miles an hour. The evidence does not show how many times appellant called appellee's attention to the speed before reaching Crawfordsville; nor does it show at what point or points on the road he spoke to appellee about the speed of the automobile. Appellant, when asked as to whether he spoke to appellant a number of times before reaching Crawfordsville, said he would not say it occurred a number of times, but that it occurred. It may according to his testimony have occurred but once while traveling the 40 miles before reaching Crawfordsville, and that one time may have been just after leaving Indianapolis. The speed of the automobile, while traveling the last 30 or 35 miles before reaching Crawfordsville, may have been such as would not have impressed a reasonably prudent person that it was unsafe to continue riding in the automobile. Appellant testified that each time he spoke to appellee about the speed they were going about 35 or 40 miles an hour, which he said was too fast to suit him; that it was because he anticipated that the speed of the automobile might result in an injury that he warned appellee. When out of the automobile at Crawfordsville he knew appellee had been driving the automobile in the manner as described by him; that he got back into the car voluntarily; that he made no demand that appellee stop the automobile and let him out; that he could have gotten back from Crawfordsville to Indianapolis by the interurban railroad, and from Covington he could have gotten back on the railroad.

The evidence shows that it took them at least an hour and a half to run from Emericksville to Crawfordsville-a distance of 40 miles. If it took an hour and a half to run that distance the average speed during that time was a trifle less than 27 miles an hour. The natural inference, then, is that they were not traveling at a speed of 35 to 40 miles an hour for any great distance before reaching Crawfordsville.

There is no evidence as to the character of the road other than that it was a gravel road at the place of the accident. Appellee testified that where there was a stretch of good road he would go at a speed of from 30 to 35 miles an hour, and at other times from 18 to 20 miles an hour. The evidence as to the speed after the parties left Crawfordsville and the times and places where appellant spoke to appellee about the speed of the automobile is as indefinite as it is as to the speed before reaching Crawfordsville. The automobile in which they were riding was an eight cylinder Peerless touring car.

[1] We cannot under this evidence say as a matter of law that appellant should have gotten out at Crawfordsville or at any other place and not have gone any farther with the party, or that he was guilty of such negligence as necessarily bars a recovery.

In Cram v. City of Des Moines, 185 Iowa, 1292, 172 N. W. 23, 18 N. C. C. A. 162, there was a judgment for defendant. On appeal the plaintiff, as in the instant case, challenged the action of the court in giving instructions, and the defendant contended that the action of the court in giving the instructions was not reversible error, for the reason that the evidence showed the plaintiff was guilty of contributory negligence and not entitled to recover in any event. In denying the contention the court said:

“But we fail to see the applicability of the rule. We are not favored with any suggestion how we may, in reason, hold, as matter of law, that plaintiff must fail should a new trial be awarded. We are not prepared to say that if, on remand, a jury should find that the driver was not negligent, or that, if he was, the plaintiff did not contribute to the negligence, we should hold, on appeal, that such finding cannot be sustained on the evidence. For that matter, we cannot know in advance that plaintiff will not add to the strength of his testimony. The rule invoked by appellee is applied where appellate court can find that some essential to recover is nonexistent. A familiar illustration is where there is judgment against an officer for having levied upon property belonging to another than the execution defendant, and it appears that no notice of ownership was served. As said, we cannot affirm on the ground that reversal and remand will be idle.”

In Clark v. Traver, 205 App. Div. 206, 200 N. Y. S. 52, cited by appellee, the plaintiff and another man were sitting in the seat by the side of the driver. They had gone 75 or 80 miles at the terrific rate of 50, 60, and 70 miles an hour, slowing down to 45 or 50 miles an hour only when going through a town. One and only one complaint was made by the plaintiff in that case, and that was shortly after they had started, and at a time when, as the plaintiff testified, they were going between 60 and 70 miles an hour, and when he told the driver he “was going too fast,” and that he, plaintiff, “did not care so much about riding that way.” The facts in that case are not to be compared with the facts in the instant case.

If in the instant case the testimony of appellee is to be given consideration in determining the question of appellant's negligence, a court or jury would be justified in finding that appellant was not guilty of any contributory negligence. If appellee's testimony is believed, it is clear he was not guilty of any negligence before reaching Covington. If he was not guilty of negligence before reaching Covington, we are not prepared to say that appellant was guilty of contributory negligence.

Appellant by instruction No. 5, requested the...

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