Pontious v. Littleton

• Decision Date: 04 March 1970
• Docket Number: No. 569A77,No. 1,569A77,1
• Citation: 146 Ind.App. 369,255 N.E.2d 684
• Parties: David L. PONTIOUS, Appellant, v. Joseph F. LITTLETON, Appellee
• Court: Indiana Appellate Court

Page 684

255 N.E.2d 684

146 Ind.App. 369

David L. PONTIOUS, Appellant, v. Joseph F. LITTLETON, Appellee.

No. 569A77.

Appellate Court of Indiana, Division No. 1.

March 4, 1970.

Miller, Tolbert & Hirschauer, Logansport, for appellant.

William L. Morris, Lawrence M. Brown, Brown & Brown, Rochester, for appellee.

LOWDERMILK, Chief Justice.

This is an action brought by the appellee, plaintiff below, against appellant, defendant below, for property damage to appellee's automobile and house trailer which were damaged as a result of appellant's striking appellee's automobile in the intersection of Fulton and Ninth Streets in the City of Rochester, Indiana, and which collision resulted in the overturning of both of appellee's vehicles.

The issues were formed by appellee's complaint and appellant's answer thereto under Supreme Court Rule 1--3A.

Appellee in his complaint alleged certain negligent acts of appellant for the proximate cause of the collision and damage complained of, namely, (a) the defendant carelessly and negligently failed and refused to yield the right-of-way when he entered the intersection; (b) defendant was driving at the unlawful rate of speed of 50 miles per hour; (c) the defendant negligently failed to keep and maintain a lookout for other peopld and automobiles properly and lawfully using the streets, including the plaintiff; and (d) the defendant failed to have and keep his automobile under control so as to be able to bring it to a stop in order to avoid the collision with others who might be lawfully using said intersection.

On the trial of the cause appellant, for his defense, relied on the contributory negligence of appellee by reason of appellee's violation of the yield-right-of-way statute.

Appellant also filed a counterclaim on which the court timely rendered a judgment against appellant. No issue on the ruling on the counterclaim adverse to appellant was raised in his motion for a new trial and it is, therefore, not before this court to be considered on this appeal.

Briefly, the facts are that on October 3, 1965, appellee was driving his motor vehicle with house trailer attached thereto, of the overall length of approximately 25 to 30 feet, west on Ninth Street in Rochester, Indiana. Appellant was operating his motor vehicle south on Fulton Street in said city.

Fulton Street was a preferential street and the two streets intersected in a residential section of the city and there was a 'yield' sign on Ninth Street, facing traffic approaching Fulton from Ninth.

The intersection was unobstructed. Appellee testified that he saw the yield sign as he approached Fulton Street at a speed of 10 to 15 miles per hour and looked in both directions, but did not see appellant's automobile approaching on Fulton Street. He further testified that in obedience to the sign he slowed to approximately 5 miles per hour and without stopping continued into the intersection at such speed of about 5 miles per hour. He had driven his automobile approximately two-thirds of the way across the street intersection when his automobile was struck on the right front door by appellant's automobile, traveling south on Fulton Street.

Appellant was driving at a speed of 50 miles per hour and there was evidence that he did lay down some skid marks just at the point of impact. Appellee never attempted to stop, and claimed that he did not see appellant's automobile until just prior to the impact, and claimed that he saw appellant's automobile 10 to 20 feet away and did not attempt to stop or turn his automobile, but hung tighter onto the steering wheel.

The impact resulted in the turning over of appellee's vehicles, damaging the automobile in the amount of $1,658.84 and the house trailer in the amount of $1,916.44.

The cause was tried to the court, without a jury, by agreement, and the court found for appellee on his complaint and against appellant, and awarded appellee $3,578.28 damages, on February 4, 1969.

Appellant timely filed his motion for new trial, together with memorandum in support thereof. The grounds of said motion for new trial were (1) the decision of the court is not sustained by sufficient evidence, and (2) the decision of the court is contrary to law.

The motion for new trial was overruled by the court and thereafter appellant filed his transcript and assignment of errors with this court. The only assignment of errors is that the court erred in overruling appellant's motion for new trial.

Appellee testified on cross examination that he had good vision to his right--that he saw the yield sign which was back far enough from the intersection that a person going the normal rate of speed would be able to stop.

Robert Strong, a member of the police department of the City of Rochester, estimated the speed of appellant's automobile at approximately 50 miles per hour in a zone posted with a speed limit of 30 miles per hour. He further testified that he issued traffic violation tickets to both parties. He issued to appellant a traffic ticket for unreasonable speed and to the appellee for failure to yield the right of way. Appellant entered a plea of guilty to the charge filed against him and paid a fine of $1.00 and costs; appellee's charge was later dismissed, with no further action.

Nancy Cripe, a passenger in appellant's automobile at the time of the accident, testified that she was riding in the front seat, that they turned at Seventh Street onto Fulton Street, and traveled south on Fulton Street. She further testified that the first time she saw the automobile and trailer driven by appellee was when it started out into the intersection; that she was looking ahead and that her best estimate of the appellant's speed was that they were speeding and that she told Officer Strong that they were going about 50 miles per hour; if she remembered correctly, appellant did apply his brakes prior to the collision.

Larry Cripe, a passenger in appellant's car, testified that appellant was driving 40 to 50 miles per hour and that appellant did apply his brakes before the impact.

Appellant testified that he was driving south on Fulton Street approaching Ninth and the first time he saw appellee's car was when it was right in front of him; that at that time he applied his brakes and swerved to the right, unable to stop his vehicle, and a collision occurred. At no time did he observe the Littleton car stop as it approached Fulton Street. He admitted he was arrested for unreasonable speed and entered a plea of guilty.

Appellant urgently insists that the appellee was guilty of contributory negligence, either as a matter of law or as a matter of fact. He further contends that the facts are undisputed and are established without any conflict in the evidence.

With this we cannot agree, as it appears from the evidence that we have related in this opinion that there is a conflict in the evidence.

Appellant has argued the two specifications of error set out in his assignment of errors are intermingled by reason of the fact that the applicable statute, which he contends controls this lawsuit, and the judgment, and that they will be intermingled in his argument. We shall, therefore, treat both specifications together.

Appellant, to sustain his point, submits that the decision of the trial judge is not sustained by sufficient evidence and relies on the following statutes:

Burns' Indiana Statute § 47--1904a:

'Whenever traffic at an intersection is controlled by signs, preferential right of way may be indicated by stop signs or yield signs as authorized elsewhere in this act.'

Burns' Indiana Statute § 47--2028(c):

'The driver of a vehicle approaching a yield sign shall in obedience to such sign slow down to a speed reasonable for the existing conditions, or shall stop if necessary as provided elsewhere in this act, and shall yield the right-of-way to any pedestrian legally crossing the roadway on which he is driving, and to any vehicle in the intersection or approaching on another highway so closely as to constitute an immediate hazard. Said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection shall yield to the vehicle so proceeding, Provided, however, That if such driver is involved in a collision with a pedestrian in a crosswalk or a vehicle in the intersection after driving past a yield sign without stopping, such collision shall be deemed prima facie evidence of his failure to yield right-of-way.' (Acts 1939, ch. 48, § 79, p. 289; 1957, ch. 290, § 4, p. 746.) (Emphasis supplied.)

Appellant further contends that under this statute if the driver of a vehicle fails to stop and the evidence is undisputed, and a collision occurs, it is at the driver's risk because by statute he has failed to yield the right of way. His further contention is that appellee, having failed to stop in deference to the yield sign and having proceeded on through the intersection with a resulting collision in the intersection, the fact of such collision shall be deemed prima facie evidence of his failure to yield the right of way.

Appellant also urges that slowing to a speed of 5 miles per hour, for the length of the car and trailer, is not a reasonable speed under the statute, and that the evidence is undisputed that appellee failed to stop his motor vehicle in deference to the yield sign, and that the evidence being undisputed that there was a collision in the intersection, such two facts constitute prima facie evidence that appellee failed to yield the right of way.

Appellant defines 'prima facie evidence' as 'such evidence as will establish a given fact, which must be contradicted by evidence of the other party, or such fact will be accepted as proved.'

He cites Harrington v. Hartman (1968), Ind.App., 233 N.E.2d 189, at page 191, as follows:

'(3) Prima facie means, 'at first sight, on the first appearance; on the face of it; so far as can be judged from the first disclosure;...