Northwestern Transit v. Wagner
| Citation | 61 N.E.2d 591,223 Ind. 447 |
| Decision Date | 15 June 1945 |
| Docket Number | 28100. |
| Parties | NORTHWESTERN TRANSIT, Inc., v. WAGNER. |
| Court | Supreme Court of Indiana |
Appeal from St. Joseph Superior No. 1; J. Fred Bingham, judge.
Walter C. Williams, of Michigan City, and Paul M. Butler, of South Bend, for appellant.
James P. Gleason and George A. Pawloski, both of Michigan City, and Michael L. Fansler, of Indianapolis, for appellee.
Appellee brought this action against appellant to recover for injuries sustained in a collision between appellee's Ford truck and appellant's Dodge tractor-trailer unit. The collision occurred shortly after midnight, November 8, 1943, in LaPorte County, Indiana, on U. S. Highway No. 20 which is a concrete pavement about 40 feet wide, divided into four lanes, and runs east and west.
Appellee's tractor and trailer had been proceeding east on said Highway No. 20 and stopped because of tire trouble and was standing facing east in the south lane of said highway. Appellee was traveling east on said highway and collided with the rear end of appellant's trailer.
Appellee filed suit against appellant and charged appellant with negligence in stopping and leaving his tractor and trailer upon the pavement without proper lights and without placing the proper signals on the highway to warn traffic of danger.
A jury returned a verdict in favor of appellee for $2,500, and judgment was rendered thereon. Appellant's motion for a new trial alleged (1) that the evidence was insufficient; (2) that the verdict was contrary to law, and (3) that the damages assessed were excessive.
Appellee contends that the appellant has not substantially complied with Rule 2-17(f) of this court in the preparation of its brief and therefore is not entitled to have grounds 1 and 2 of its motion for a new trial considered.
Appellant's only assignment of error is the overruling of the motion for new trial, and in its brief, as Proposition I, it has set out this assigned error. Then as Point 1, it says the verdict is not sustained by sufficient evidence in certain particulars. Then follow unnumbered and unlettered statements of law which are in large part quotations from decided cases. Appellant did not apply these statements of law specifically to the point under which they appear, but they follow the point and appellant's intent that they shall apply to the point which they follow is clear. In its points and authorities, appellant in substance says that there is no substantial evidence that defendant was guilty of negligence and that the evidence shows contributory negligence but under its points and authorities, it does not set out the evidence upon which it relies and does not refer to any such evidence by line and page of the transcript. This would be helpful to the court but does not seem to be required by the rules. The brief, however, at the proper place under the rules, contains a full narrative statement of the evidence with frequent references to line and page of the transcript. The brief contains an index showing where in the brief the examination of each witness may be found. As Point 2, appellant says the verdict is contrary to law and handles Point 2 largely by reference to Point 1.
We think the appellant has made a good faith effort to comply with the rules and that each of its contentions should be decided by this court upon its merits.
The principal negligence charged against the appellant was the failure of appellant's driver to place lighted flares or pot torches to warn traffic approaching from the rear.
A statute of Indiana provides that when a truck, tractor or trailer is disabled on the traveled portion of any highway the driver shall immediately place a lighted fusee on the roadway at the traffic side of the vehicle in trouble, and then within the burning period of the fusee shall place three lighted flares or pot torches on the roadway, one at a distance of not less than 100 feet in advance of the crippled vehicle and one at a distance of not less than 100 feet to the rear of the crippled vehicle and one at the traffic side of the crippled vehicle. Burns' Ind. Annotated Statutes, 1933, Sec. 47-2237.
It was not controverted that appellant's truck had been standing in the highway for an hour and a half before the collision here involved occurred, and there was testimony that no fusee was burning at the time of the accident, and that no flare or pot torch had been placed either ahead of or in the rear of appellant's crippled truck, and that the pot torch placed at the side of the truck was so located that it was screened and hidden from the view of traffic approaching from the rear by a spare tire which was leaning against the side of the truck. We cannot say there was no substantial evidence from which the jury might have believed defendant failed to place pot torches as required by statute, and such failure would be negligence per se. Winder & Son, Inc., v. Blaine, 1940, 218 Ind. 68, 71, 29 N.E.2d 987.
The question of appellee's contributory negligence is more difficult. Appellee himself testified that he had good brakes and good lights. He said the beams from his headlights hit the pavement 50 or 60 feet ahead and cast light much farther ahead. No definite distance beyond 60 feet was given. The burden was on appellant to prove contributory negligence of appellee, and in the absence of proof we must assume that appellee's lights were adequate and complied with the applicable statute. Cushman Motor Delivery Co. v. McCabe, Adm'r, 1941, 219 Ind. 156, 169, 36 N.E.2d 769. The road was straight for at least a half mile, and there was no hill or other obstruction to his view ahead, but he did not see the parked trailer until he was about 10 feet away from it. He had been driving at a rate of 30 or 35 miles an hour. He gave no excuse for his failure sooner to observe the parked trailer.
In determining this...
To continue reading
Request your trial