Pontiac-Chicago Motor Express Co. v. George Cassons & Son
| Decision Date | 27 May 1941 |
| Docket Number | No. 16494.,16494. |
| Citation | 109 Ind.App. 248,34 N.E.2d 171 |
| Parties | PONTIAC-CHICAGO MOTOR EXPRESS CO. v. GEORGE CASSONS & SON et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, St. Joseph County; J. Elmer Peak, Judge.
Action by the Pontiac-Chicago Motor Express Company, for the use of C. E. Gauss as Commissioner of Insurance for the State Accident Fund of Michigan, against George Cassons & Son and another, on subrogation claim for death in automobile collision. From a judgment for defendants, plaintiff appeals.
Affirmed.Arnold, Chipman & Degnan and Charles W. Dohnalek, all of South Bend, for appellant.
Parker, Crabill, Crumpacker, May, Carlisle & Beamer, of South Bend, and Anderson & Mayfield, of Indianapolis, for appellees.
DE VOSS, Presiding Judge.
The appellant herein filed its complaint in one paragraph against the appellees in the St. Joseph Superior Court No. 2. The complaint was in subrogation by appellant on behalf of the insurance commissioner of Michigan for the State Accident Fund of Michigan, and seeks to recover from appellees the amount of money said accident fund has been compelled to pay, and will be required to pay in the future to Gertrude Humes, widow, Marcelline Humes and Vivien Humes, infant daughters of one Jay Humes, employe of appellant, who was alleged to have been killed in a collision on state highway No. 2 between an east bound Studebaker truck, operated by said Jay Humes, and a west bound motor transport, operated by appellee Elmer Buesser, as the servant of appellee, George Cassons & Son.
It is alleged in the complaint that the death of said Jay Humes was directly and proximately due to the negligence of the defendants.
The specific acts of the negligence as charged in the complaint are as follows:
(1) Negligence of the defendants in operating the said Dodge transport onto their left side, and into and upon the southerly lane of travel of said public highway, then and there occupied at said time by the Studebaker tractor operated by the said Jay Humes.
(2) Failure of the said defendants to keep a proper lookout ahead so as to observe and, by appropriate action, directing the course of their transport to prevent the said Dodge transport from colliding with the said Studebaker tractor being driven in the opposite direction on its proper lane of travel on said public highway.
(3) Failure of the said defendants to stop their said Dodge Transport before striking the said Studebaker tractor which said Jay Humes was then and there driving, and thus avoid the collision aforesaid.
(4) Failure and neglect on the part of the defendants in not directing the said Dodge Transport to their right, and onto the northerly lane of travel of said public highway, upon approaching the said Studebaker tractor being driven by said Jay Humes.
(5) Failure on the part of the defendant to have their said Dodge Transport then and there under control, and thus avert the happening of the accident aforesaid.
The issue was closed by a general denial filed by appellee and the cause was submitted to a jury for trial. At the close of the plaintiff's evidence upon request by appellees, the court gave to the jury a peremptory instruction directing the jury to return a verdict for appellees. Pursuant thereto, the jury returned a verdict for appellees and the court rendered judgment thereon that appellant take nothing by its complaint. Motion for a new trial was filed by appellant and overruled by the court, and from that ruling this appeal is prosecuted.
The only error assigned in this court is that the trial court erred in overruling appellant's motion for a new trial. Three reasons are specified in the motion for a new trial but only the first reason set out in said motion is relied upon for reversal, and the same is as follows: “(1) The court erred in giving to the jury at the close of plaintiff's case the peremptory instruction tendered by the defendants whereby the court directed the jury to return a verdict for defendants.”
[1][2] In passing upon a motion to direct a verdict for a defendant, the trial court will consider only that evidence which is favorable to the plaintiff, and will consider all reasonable inferences in favor of such plaintiff as may be reasonably drawn therefrom. If the evidence fails to establish some essential element of plaintiff's case, it then becomes the duty of the trial court to direct a verdict for defendants. Snyder v. New York Central Railroad Co., 1935, 101 Ind.App. 258, 194 N.E. 796, also Farmers & Merchants Bank v. Peoples Trust & Savings Bank, 101 Ind.App. 474, 199 N.E. 892;Dunnington v. Syfers et al., 1901, 157 Ind. 458, 62 N.E. 29.
[3] Inferences to be drawn in favor of plaintiff by the trial court, in...
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