Pitts v. Stewart

• Decision Date: 19 December 1962
• Docket Number: No. 1,No. 19523,19523,1
• Citation: 138 Ind.App. 102,186 N.E.2d 800
• Parties: William PITTS and Kenneth Jones, Appellants, v. Max STEWART, Appellee
• Court: Indiana Appellate Court

Page 800

186 N.E.2d 800

138 Ind.App. 102

William PITTS and Kenneth Jones, Appellants, v. Max STEWART, Appellee.

No. 19523.

Appellate Court of Indiana, Division No. 1.

Dec. 19, 1962.

Taylor & Taylor, Sullivan, Mann & Mann, Hansford C. Mann, Terre Haute, for appellant Pitts.

Berry, Kincade & Allen, Terre Haute, for appellee.

Tennis & Cochran, Sullivan, Gambill, Cox, Zwerner & Gambill, Terre Haute, for appellant Jones.

MYERS, Judge.

This is an action for damages for alleged personal injuries sustained by appellee and claimed to have been received in a multiple automobile collision in which both appellants are said to have been at fault. Trial was had by the court without the intervention of jury, and the Judge found that both appellants were jointly negligent and assessed damages in the sum of $15,000. Consistent judgment was rendered from which appellants have appealed.

The facts in this case most favorable to the appellee are as follows: At about 3:30 o'clock p. m. on July 3, 1959, appellee, Max Stewart, was driving his automobile in an easterly direction on U. S. Highway No. 40 between Terre Haute and West Terre Haute in the State of Indiana. This stretch of road is a four-lane highway with no divider strip, but a set of yellow lines marking the center. The two lanes to the south were used by motorists traveling east and the two lanes to the north were used by motorists going westward. At the same time, appellant, Kenneth Jones, was operating his automobile in a westerly direction on this highway. Jones was afflicted with chronic diabetes and had been so afflicted for approximately ten years. He was in the habit of regularly taking medication in the form of insulin for treatment and control of his diabetic condition. He had taken treatment on the morning of July 3, 1959. Prior thereto, Jones had been subject to and had suffered attacks of 'insulin shock' which had resulted in extreme nervousness and loss of consciousness. Having experienced such 'insulin shock,' Jones was aware of the symptoms which heralded these attacks. When he felt them coming on, he counteracted the adverse effects of insulin by consuming sugar.

On July 3, 1959, Jones was driving west on U. S. No. 40 when he felt the symptoms coming on and realized he was going to have an attack which might render him unconscious. Instead of driving off the highway at one of a number of points west of the Wabash River bridge which separates Terre Haute from West Terre Haute, stopping and consuming some sugar candy which he had in his car, Jones continued driving westward on U. S. No. 40 in an attempt to get to a highway separation known as the 'Y,' about a mile west of the bridge, where he planned to stop. He did not make it. As he neared the bridge, he began to lose consciousness and his car went out of control. It began to weave and cross from the far right lane over the center line and into the innerlane for westbound traffic, then back across the center line to swerve to the far north edge of the highway, coming to a stop against a concrete retaining wall, grazing it in the process.

There were two cars being operated westward behind Jones. The first was driven by a person unknown and the second by appellant Pitts. They were in the process of getting into position to pass Jones when Jones began to lose consciousness and his vehicle went out of control. As the Jones car began to swerve in the highway, the first car managed to pass it and successfully avoided any contact with it. Appellant Pitts allowed his automobile to cross the center line into the eastern innerlane of traffic where it collided with the vehicle driven by appellee hernin. There was positive evidence that when the cars came to a stop after the crash, the front end of Pitts' automobile remained across the center line. This was sufficient to enable the court to base a finding that the car driven by Pitts struck the automobile driven by appellee.

In its special findings of facts, the court found that Pitts was negligent in the following particulars:

'11. * * *

'(d) The defendant Pitts negligently operated his vehicle across the center line of said highway and into the eastbound traffic lane then and there being used by the plaintiff;

'(e) The defendant Pitts negligently failed to keep his vehicle under reasonable control and operated it across the center line of said highway and into a collision with the plaintiff's vehicle;

'(f) The defendant Pitts negligently failed to stop his vehicle before crossing the center line and colliding with the vehicle driven by the plaintiff.'

The court also found that the appellee was not guilty of contributory negligence.

Appellant Pitts asserts that there is no evidence in the record from which the court could find that he was negligent. As we have seen, the record reveals that at the time of impact the front end of Pitts' car was across the yellow center line. The pertinent part of the applicable statute provides as follows:

'Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway except as follows: * * *.' (None of the statutory exceptions are applicable to the facts of this case.) Section 47-2010, Burns' Ind.Stat., 1952 Replacement (Supp.).

The violation...