Neyenhaus v. Daum
| Decision Date | 20 April 1936 |
| Docket Number | 15453. |
| Citation | 1 N.E.2d 281,102 Ind.App. 106 |
| Parties | NEYENHAUS v. DAUM et al. |
| Court | Indiana Appellate Court |
Appeal from Perry Circuit Court; Oscar C. Minor, Judge.
Action by John F. Daum, administrator of the estate of Irvin Daum deceased, against John Neyenhaus and another. From a judgment for plaintiff, the named defendant appeals.
Reversed with directions.
Driver employed by owner of truck to take potatoes and certain people to home of owner's father and return to owner's home, was not in employment of owner after he returned to owner's home, and hence owner was not liable for injuries sustained by third person in collision which occurred while driver was using truck after returning to owner's home.
Austin B. Corbin, of Tell City, and Fenton, Steers, Beasley & Klee of Indianapolis, for appellant.
L. N. Savage, of Rockport, U. B. Ewing, of Tell City, and D. C. Goble, of Cannelton, for appellees.
This was an action below by the appellee John F. Daum, administrator of the estate of Irvin Daum, deceased, against the appellant, John Neyenhaus, and the appellee Roscoe Bolin, to recover for the wrongful death of Irvin Daum alleged to have been occasioned by the collision of an automobile, in which the decedent was riding as a guest, with an Overland truck owned by the appellant, but which was being operated by the appellee Roscoe Bolin and at the time of the collision was parked alongside of a public highway in Perry county, Ind. The re-amended complaint was in one paragraph, to which both defendants filed separate answers in general denial. Trial was had before a jury, which returned a verdict for the plaintiff and against both defendants in the sum of $2,450. Judgment for the plaintiff was rendered upon the verdict. Separate motions for new trial were filed by each defendant and overruled by the court. The appellant then prayed an appeal to this court, assigning as error the action of the trial court in overruling his motion for new trial. His codefendant Roscoe Bolin did not join in the appeal and was named as an appellee by appellant. He has not appeared or filed any briefs in his behalf. Reference hereinafter made to the appellee therefore will refer only to John F. Daum, administrator, who was the plaintiff below.
The appellant's motion for new trial assigned, among others, three grounds which are presented by the briefs in this cause; the other grounds being expressly waived by the appellant. These three grounds present that the verdict of the jury is contrary to law and that the evidence is not sufficient to sustain the verdict.
The complaint of the appellee in this cause proceeds upon the theory of negligence in parking the truck in question upon the traveled portion of a highway without lights at a time of day when, under the laws of the state of Indiana, lights should have been displayed on the truck. While there is some conflict in the evidence as to the actual time the accident occurred and the position of the truck on the highway at the time of the accident, there is evidence in the record to support the verdict of the jury upon that question, and this court will not weigh the evidence.
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