Neuwelt v. Roush

• Decision Date: 28 April 1949
• Docket Number: 17793.
• Parties: NEUWELT et al. v. ROUSH.
• Court: Indiana Appellate Court

85 N.E.2d 506

119 Ind.App. 481

NEUWELT et al. v. ROUSH.

No. 17793.

Appellate Court of Indiana, in Banc.

April 28, 1949

[Copyrighted Material Omitted]

Appeal from Fountain Circuit Court; Roy C. Fenters, Judge.

Action by George Roush against Mathew Neuwelt and Marian Neuwelt for personal injuries sustained when struck by an automobile driven by first-named defendant. From a judgment for plaintiff for $7,000, the defendants appeal.

Judgment affirmed.

Carl F. Henthorn, Pros. Atty., of Covington, and Byron Emswiller and Albert Stump, both of Indianapolis, for appellants.

Harker & Irwin, of Frankfort, White & White, of Covington and Robison & Robison, of Frankfort, for appellee.

WILTROUT Judge.

Appellee brought this action against appellants to recover damages for personal injuries sustained when he, a pedestrian, was struck by an automobile driven by the appellant Mathew Neuwelt. Trial by jury resulted in a verdict for $7,000, upon which judgment was entered. The jury also returned answers to interrogatories submitted by appellants.

The assigned errors relate to the overruling of appellants' motions for judgment on the interrogatories, and motion for a new trial.

The facts found by the jury in answer to the interrogatories together with other facts which the jury might find under the evidence disclose the situation following.

Jackson Street is a north and south preferential street in the City of Frankfort. It intersects Barner Street in a residential part of the city. There were no traffic control signals at the intersection.

Around midnight of the night of January 28, 1944, or shortly thereafter, appellee approached the intersection from the west, walking on the north side of Barner Street, and started to cross Jackson Street on the crosswalk.

When appellee arrived at the west side of Jackson Street he looked both ways and did not see any cars coming. The last time he looked south was when he was approximately 15 1/2 feet from the west curb, or about two feet west of the center line of Jackson Street. Appellants' car was then approximately 75 feet south of the crosswalk, and there were no objects between appellee and the car to obscure vision.

Appellee remained standing, at least momentarily, at the point two feet west of the center line, and resumed his progress across the street. He thought the car was coming at him, and became confused. His idea was to get out of the way of it.

The street lights at the intersection were lit. The appellant Mathew Neuwelt, who was driving the automobile, testified that he first saw appellee when he was a good block away and was in the street about a step from the curb, and that he thereafter watched appellee's progress across the street. He did not sound his horn. The headlights were burning, and the car was being driven about a foot east of the center line. There were no cars parked along Jackson Street, which was thirty-five feet wide. Appellants' speed was approximately 30 miles per hour as the car entered the intersection and was still approximately 30 miles per hour at the time of the collision. At no time did the car bear to the right. The driver applied the foot brakes, which were in good condition, after it became apparent to him that a collision was imminent, but he testified that this was done probably simultaneously with the impact, or just shortly before. The car went about fifty feet before it stopped.

Only the pleadings, the general verdict, the interrogatories and answers will be considered in determining whether a judgment should have been entered on the answers to interrogatories. The evidence actually introduced at the trial will not be considered, but the court will suppose any evidence that might properly be introduced under the issues. L. S. Ayres & Company v. Hicks, 1942, 220 Ind. 86, 40 N.E.2d 334, 41 N.E.2d 195, 41 N.E.2d 356; Brown v. Greenwood, 1945, 116 Ind.App. 112, 60 N.E.2d 152; New York Central R. Co. v. Thompson, 1939, 215 Ind. 652, 21 N.E.2d 625.

The general verdict is conclusive unless there is a real and substantial conflict in some vital particular between it and facts found or some of them which cannot be avoided or explained by any reasonable inference and by which the general verdict is necessarily overcome. New York Central R. Co. v. Thompson, supra.

Numerous specific acts of negligence were charged in the complaint. The facts found by the jury in the answers negatived some of these acts. However, there were no interrogatories covering the facts involved as to all of the allegations of negligence. No interrogatories were submitted with reference to whether appellants kept a proper lookout, whether they failed to sound the horn, or as to facts from which it could be definitely said that the speed of the car was not greater than was reasonable and prudent under the conditions and with regard to the actual or potential hazards then existing. The answer to the rate of speed was approximately 30 miles per hour. The speed therefore, may have been more or less than 30 miles per hour. The answer that both headlights were burning does not alone show that the headlights met all requirements of the statute. Brown v. Greenwood, supra. Neither did the answer that the brakes on the car were in 'good condition' necessarily find that they were adequate for the particular type of vehicle in ordinary reasonable use on the highway. Rentschler v. Hall, 1947, 117 Ind.App. 255, 69 N.E.2d 619.

The answers to interrogatories must be construed strictly. They cannot be broadened by inference. New York C. & St. L. R. Co. v. White, 1934, 99 Ind.App. 454, 192 N.E. 846.

We cannot say, as appellants urge us to do, from the facts found in answer to the interrogatories with reference to appellee's resuming his progress across the street from the point two feet west of the center line after looking at appellants' car 75 feet away, that appellee was guilty of contributory negligence as a matter of law and that such negligence proximately contributed to his injuries. Where the answers to interrogatories fail, as they do here, to find facts necessary to establish the negligence of the plaintiff and that such negligence contributed to the injury, and where evidence was admissible under the issues from which the jury might properly have found that appellee was in the exercise of ordinary care, then a motion for judgment on the interrogatories is properly overruled. Drewrys Limited U. S. A., Inc., v. Crippen, 1943, 113 Ind.App. 120, 44 N.E.2d 1006.

There was no irreconcilable conflict between the special answers and the general verdict.

Appellants objected to the giving of appellee's instructions 9, 10, and 11 on the ground that they state abstract propositions of law without showing their applicability to the issues, although it is not contended that they are inaccurate. Instruction No. 9 defined contributory negligence. No. 10 was to the effect that the burden of proving that defendant was guilty of negligence rested on the plaintiff, and that the burden of proving that plaintiff was guilty of contributory negligence rested upon the defendant. No. 11 stated that if the jury found from a fair preponderance of the evidence that the plaintiff was guilty of contributory negligence proximately contributing to the injury, their verdict should be for the defendant. It thus appears that the instructions, when read together, were not only applicable to the issues, but were applied to them. It might also be pointed out that the giving of instructions stating mere abstract rules of law is not available error where they correctly state the law with reference to an issue involved. Grand Rapids & I. R. Co. v. Jaqua, 1917, 66 Ind.App. 113, 115 N.E. 73; Connor v. Jones, 1945, 115 Ind.App. 660, 59 N.E.2d 577, 60 N.E.2d 534.

Appellants also complain of the giving of plaintiff's tendered instruction No. 21 on the ground that it assumes as a fact a matter in controversy, and that the instruction does not state the law relative to any issuable facts supported by any evidence. From the objection made to the instruction it appears that it is appellants' position that the assumption complained of was that there was evidence from which the jury could find for appellee under the doctrine of last clear chance, when, as appellants contend, there was no evidence that the appellant driver had knowledge of the situation in time to avoid the accident. The second paragraph of complaint was based upon that doctrine, it being pleaded that appellee was incapacitated, was in a position of peril, and that appellants became aware of that fact in time to avoid the accident. The instruction itself does not assume any fact as having been proven, and appellants do not contend that it embodies an incorrect statement of the law.

Evidence was introduced by appellants to prove that appellee was incapacitated by reason of intoxication, and there was evidence that appellant driver was able to observe the appellee from a point a block away up until the point of the accident. Nevertheless, the jury specifically found that appellee was not incapacitated, and therefore the verdict does not rest on the last clear chance doctrine. Even if there had been error in this instruction, it was harmless. An erroneous instruction will not be grounds for reversal where answers to interrogatories find the facts to which it is applicable did not exist and it appears that the appellants were not injured by the instruction. Roush v. Roush, 1900, 154 Ind. 562, 55 N.E. 1017; Baltimore & O. S.W. R. Co. v. Harbin, 1903, 160 Ind. 441, 67 N.E. 109; Grand Rapids & I. R. Co. v. Oliver, 1914, 181 Ind. 145, 103 N.E. 1066.

Appellants also complain of the giving of the appellee's tendered instruction No. 23, asserting...