Opple v. Ray

• Decision Date: 09 April 1935
• Docket Number: 26,433
• Citation: 195 N.E. 81,208 Ind. 450
• Parties: Opple et al. v. Ray
• Court: Indiana Supreme Court

195 N.E. 81

208 Ind. 450

Opple et al. v. Ray

No. 26,433

Supreme Court of Indiana

April 9, 1935

From Hendricks Circuit Court; A. J. Stevenson, Judge.

Action by Gurnsey Ray against William A. Opple and another for personal injuries received in an automobile collision. From a judgment for plaintiff, defendants appealed. Transferred from the Appellate Court.

Affirmed.

Ralph K. Kane, Gideon W. Blain, and Robert Hollowell, Jr., for appellants.

George Burkhart, James L. Clark, and Archie J. Kahl, for appellee.

OPINION

Fansler C.J.

Appellee brought this action to recover damages for personal injuries resulting from a collision between an automobile in which he was riding and an automobile owned by appellant William A. Opple, and driven by appellant Helen Opple, his daughter. There was a verdict and judgment for appellee for $ 1,000.

Appellant Wliliam A. Opple predicates error upon the overruling of his motion for a new trial, which involves the sufficiency of the evidence, and the overruling of his motion for judgment upon the answers to interrogatories submitted to the jury. Appellant Helen Opple predicates error upon the overruling of her separate motion for a new trial, which involves the sufficiency of the evidence only, and the sustaining of plaintiff's motion to strike out her second paragraph of answer.

It is alleged in the complaint, the sufficiency of which is not questioned here, that Helen Opple was a minor, and did not have a license to drive a motor vehicle, both of which facts were known to appellant William A. Opple; that he permitted her to take and use his automobile, knowing that it was to be used on the highway, and knowing that the lighting system on the car was defective, and that the tail-light would not operate; that the automobile ran out of fuel, and that Helen Opple allowed it to stand in the center of the highway without any tail-light or headlight; that the driver of the automobile in which plaintiff was riding was not able to see the parked automobile in time to avoid a collision with it that plaintiff was injured in the collision.

It is clearly established that Helen Opple was not a minor, but of full age, at the time of the accident; that she had no driver's license; that she operated her father's car upon the highway at night, and ran out of gasoline, and permitted it to stand parked in the traveled way on the pavement; and that the car in which appellee was riding collided with it; that he was injured in the collision. She left her father's house in the car after dark. There is undisputed testimony that the car in which appellee was riding approached the parked car from the rear, traveling at 30 to 35 miles an hour; that as it approached the parked car another car was approaching from the opposite direction with headlights burning; that at that time the headlights on the car in which appellee was riding cast their direct rays only 12 or 15 feet ahead; and the testimony varied as to the distance in front of the car in which an object could be seen, from 45 to 75 feet. The driver testified that he did not see the parked car until within 12 or 15 feet of it, and until too late to avoid colliding with it. There is some testimony that the tail-light on the parked car was burning, but many witnesses testified that it was not burning. Witnesses testified to conversations with William A. Opple in which he said the lighting system on his car was out of order, and that he knew it, and there were circumstances in evidence indicating that some of his family were also acquainted with this fact. There was evidence offered and admitted tending to prove that Helen Opple was not familiar with the operation of an automobile, and that she had not driven one for more than a year.

The jury answered interrogatories to the effect that at the time of the accident Helen Opple was 22 years of age; that she did not have an automobile driver's license; and that on the evening of the accident William A. Opple gave his permission to his daughter Edna, who did have a driver's license, to use his car to go to Mooresville, and that Edna turned the automobile over to Helen, and that William A. Opple knew of, or consented to, the automobile being turned over to Helen, and that he knew that Helen had no driver's license; that the proximate cause of the collision was "obstructing the highway without displaying proper signals"; that when the automobile ran out of gas and stopped, Helen left the scene of the accident, which a reasonably prudent person would not have done under the circumstances; and that she failed to remove the car from the highway, and failed to display a proper signal, which a reasonably prudent person would have done under the circumstances.

Both plaintiff's and defendants' tendered instructions, which were given, assume that permitting an unlicensed person to operate an automobile, at least if that person is a minor, constitutes negligence, and if that negligence was a proximate cause of the injury there would be liability. But we are unable to see how minority, or lack of an operator's license, could be the proximate cause of an injury. It is true that lack of skill or knowledge concerning the operation of an automobile may cause an injury; and some evidence was introduced tending to establish that Helen Opple was not familiar with the operation of an automobile. But if a person, adult or minor, unlicensed to operate an automobile, is intrusted with one and operates it with that degree of care and skill that is required of a licensed operator, negligence cannot be predicated upon the mere fact of minority or lack of an operator's license.

It is generally said that an automobile is not a dangerous agency; but it is unlawful and highly dangerous to operate an automobile on the highway at night without lights, and an automobile so operated is a dangerous agency. When William A. Opple intrusted the defective automobile to his daughter, knowing that it was to be used on the highway in the dark, he was bound to anticipate that the automobile might be stopped upon the road, or that it might be operated at a low rate of speed, and that under such circumstances a collision from the rear was highly probable.

Where a bailor intrusts a dangerous article to a bailee, knowing that it will be used in such a manner as to endanger persons and property, he is chargeable with negligence and answerable in damages for any injury which, by the exercise of ordinary prudence, he could have foreseen. Fisher v. Fletcher (1922), 191 Ind. 529, 133 N.E. 834; 42 C.J. 1077.

It is contended by William A. Opple that the fact that the car was standing in the road was the proximate cause of the injury to appellee, and that the negligence of his daughter in so leaving the car there, and not pushing it from the road, is an intervening cause which would protect him from liability. But an intervening agency will not be deemed the sole proximate cause of an injury where the circumstances surrounding the intervention were such as could reasonably have been expected to occur in the ordinary course of events as indicated by common experience. If the negligence involved in leaving the car in the road without a tail-light is separable from its use on the road without a tail-light, they were at least concurring causes of the collision. There was ample evidence to sustain the verdict and to sustain the jury in its special finding that the proximate cause of the collision was "obstructing the highway without displaying proper signals." We have given a substantial summary of the answers to the interrogatories. They are not at all inconsistent with the general verdict; and the motion for judgment, notwithstanding the general verdict, was properly overruled.

Appellants contend that the plaintiff was chargeable with contributory negligence because the driver of the car was violating the statute, which requires that headlights must be visible for 500 feet, and such as to enable the driver to see an object the size of a man 200 feet in front of the car in the direction in which it is proceeding. The statute in question, section 47-504, Burns 1933, § 11154, Baldwin's 1934, also provides that the operator of a car shall, when approaching and about to pass a car traveling in the opposite direction, dim or reduce the front lights on his car so that the rays projected therefrom will not blind or confuse the other driver. Under statutes similar to this, it has been held in most jurisdictions that a car must be equipped with such lights and must proceed at such speed that the operator will be able to stop before colliding with any object in his path; and this court denied petitions to transfer in two cases, which seems to indicate an adherence to such a rule. Both cases, Pennsylvania R. Co. v. Huss (1933), 96 Ind.App. 71, 180 N.E. 919, and C.C.C. & St. L.R. Co. v. Gillespie (1933), 96 Ind.App. 535, 173 N.E. 708, involved the collision of an automobile with a freight train standing upon a railroad crossing in the dark. In both cases it was held that to drive an automobile at such a speed that it could not be stopped within the distance that objects could be seen ahead of it was contributory negligence as a matter of law, and that the question of proximate cause is not properly submitted to the jury. Many cases from many jurisdictions are cited to support the proposition, but it seems to us that the statement is too broad. Statutory provision is made for the maintenance of signs at the side of the highway indicating the approach to a railroad crossing. The signs are maintained for the protection of those using the highway. Reasonable prudence requires that one using the highway take care to observe such signs, and take notice of the proximity...