Newton v. Cecil
| Decision Date | 01 March 1955 |
| Docket Number | No. 18545,18545 |
| Parties | G. Eugene NEWTON, Appellant, v. Melvin CECIL, Appellee. |
| Court | Indiana Appellate Court |
Frank B. Russell, Tipton, Christian, Waltz & Klotz, Noblesville, for appellant.
Garrison & Castor, Noblesville, for appellee.
Appellee instituted this action in the lower court for damages for personal injuries and property damages growing out of an automobile collision on State Road 37 in Noblesville, Indiana, on April 25, 1947.
The amended complaint consisted of two paragraphs--first, for damages for personal injuries; second, damages allegedly done to the automobile. Appropriate answers were filed by the appellant.
The acts of negligence charged were, that the appellant operated his car at a high and dangerous rate of speed, to wit: fifty miles per hour; that he drove his car across the center line of public highway No. 37 and onto the lane of traffic for motor vehicles traveling in a northerly direction; that he failed to keep a proper lookout and yield the right-of-way.
Trial by court resulted in a judgment in favor of appellee on his first paragraph of amended complaint in the sum of $850 and in favor of appellant on the second paragraph of amended complaint. No cross errors are assigned by appellee. Appellant's new trial motion contained four specifications. It is only necessary to discuss the first two thereof which are: that the decision of the court is not sustained by sufficient evidence and is contrary to law. The other two specifications not being argued or discussed in appellant's brief are therefore waived. The assignment of error is that the court erred in overruling appellant's motion for new trial.
State Road No. 37 runs in a northerly and southerly direction through the town of Noblesville, Indiana. There was evidence that the appellee was backing out of a driveway from the '37 Grill' onto the east lane of said highway; that in doing so, he looked to the south and saw no vehicles approaching in the line of travel in the direction which appellee was proceeding; that when he got his automobile within two feet of the center line, which was on the east side thereof, he first observed within fifteen to twenty feet the approach of the appellant's automobile traveling in a southerly direction which was over the center line (east side) and onto his travelled portion of the highway; that the weather was damp, the pavement wet; that the appellant did not put on his brakes. There was evidence that appellant as he was traveling in the above position was going fifty miles per hour; however, he testified that he was traveling between thirty and thirty-five miles per hour. He likewise testified that as he approached appellee's car traveling in a southerly direction, he observed a bus parked on the west side of the highway which was the lane of travel for motor vehicles proceeding in a southerly direction; that he turned his car to the center to avoid the bus or any one getting off; however, there was no evidence of any one getting off the bus. There was evidence that the road at the point of impact was 30' wide. The appellant testified that each lane would be from twelve to fifteen feet wide and that the bus was of ordinary width. As to the position of appellant's car in relation to the center line of the road, he testified as follows:
'Q. Where were you with reference to the center line of the road, in your opinion? A. I would say about----
(Objection)
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On cross examination, the following questions were asked and the answers given:
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The evidence did not disclose any moving traffic on the west side of the road in front of appellant's car.
As to the second paragraph of amended complaint, the evidence showed that the Chevrolet car was purchased in 1942 by appellee;...
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...108 N.E.2d 136. See also: E. H. Purcell & Co., Inc. v. Agricide Corp. (1956), 126 Ind.App. 476, 134 N.E.2d 233; Newton v. Cecil, 1955, 125 Ind.App. 416, 421, 124 N.E.2d 713.' See also, Hinds v. McNair, 235 Ind. 34, 129 N.E.2d 553 (1955) and Silvestro v. Walz, 222 Ind. 163, 51 N.E.2d 629 In ......
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