Presser v. Shull

• Decision Date: 22 March 1962
• Docket Number: No. 1,No. 19384,19384,1
• Citation: 133 Ind.App. 553,181 N.E.2d 247
• Parties: Grace M. PRESSER, Appellant, v. Richard Lee SHULL, Appellee
• Court: Indiana Appellate Court

Page 247

181 N.E.2d 247

133 Ind.App. 553

Grace M. PRESSER, Appellant, v. Richard Lee SHULL, Appellee.

No. 19384.

Appellate Court of Indiana, Division No. 1.

March 22, 1962.

Rehearing Denied May 17, 1962.

Transfer Denied June 25, 1962.

Peck, Scott & Shine, William L. Peck, Anderson, for appellant.

Bagot, Free & Shearer, Robert L. Shearer, Robert W. Miller, Anderson, for appellee.

AX, Judge.

This is an action brought by appellant against appellee to recover damages for personal injuries sustained as a result of a collision between an automobile driven by appellee and an automobile driven by appellant's husband, while appellant was a passenger in her husband's vehicle.

From a verdict and judgment thereon in favor of appellee, appellant has brought this appeal, assigning as error the overruling of her motion for new trial.

On October 14, 1957, appellee, a state police officer, while driving his car west on State Highway No. 67, south of Anderson, Indiana, collided with a car being driven by appellant's husband, hereinafter referred to as Presser. It appears from the evidence that immediately prior to the collision, the Presser car in which appellant was a passenger was being driven east along said Highway No. 67. This highway was a three-lane highway. Presser intended to drive his car into a trailer camp on the north side of the highway to visit with his brother. Prior to reaching a point opposite the west driveway entrance to the trailer court, Presser noticed a car, followed by a truck, coming from the east in the north lane of traffic. Presser turned his car north toward the trailer court driveway and stopped his car in the center lane to wait passing of oncoming cars. The time was approximately 6:00 p. m., it was a dark and clear night, and the lights were burning on his car. Immediately thereafter both appellant and Presser, according to their testimony, saw the police car coming around both of the approaching vehicles, with its red light flashing. From this point on arises a serious conflict in the evidence. Appellant claims that the appellee's car was coming at a rate of speed of approximately seventy-five to ninety miles per hour; that neither she nor Presser saw this car until it was approximately five hundred feet east of their car and was in process of passing the two approaching vehicles from the east by coming over to the south or left side of said vehicles and over and into the center lane. Appellant's evidence further indicates that appellee made no attempt to take his car back into the north lane, but instead proceeded directly towards the Presser car in the center lane; that Presser made an attempt to avoid the collision by turning his car at the last few seconds left toward the north lane but was unable to avoid being hit by appellant's car, which struck the Presser car on the right hand side, causing this car to be wrecked and appellant to be thrown out with resulting injuries.

Taking evidence favorable to appellee as produced by appellant's own witness, Harold Smith, county surveyor, it appears that the crest of the hill to the east was approximately 1000 feet east of the entrance to the west driveway of the trailer camp--that by reason of the way the hill and highway sloped, it was possible for a person with an eye level of four feet six inches above the pavement and with normal eyesight to see an object five feet high approaching the scene of the accident from east to west a distance of 1300 to 1400 feet. There was no evidence that Presser did not have normal eyesight.

According to his own testimony, appellee did not know how fast he was driving but estimated his speed as between 65 and 70 miles per hour. Appellee testified that as he passed the pickup truck and car referred to by appellant's testimony, his siren was sounding, his red flasher was on, and his car mechanically was in good condition; that immediately thereafter he 'swung' his car back into the north lane of the highway; that he saw the Presser car move from the center lane into the north or west-bound lane immediately in front of him and he had no time to apply his brakes but attempted to avoid the collision by swerving his car to the left. Unable to avoid the collision, appellee's car caromed off of the Presser car and went down the center lane of traffic.

There was much conflicting evidence given from eyewitnesses, from the appellant, her husband, and the appellee, concerning the point of impact and concerning the actual events leading up to the collision and concerning the actual cause of the collision. Appellee, in order to substantiate his own defense that the actions of the driver of the Presser car caused the collision, called upon two state police officers who were fellow members of the same Police Post out of which appellee worked. One of these men, Officer Jarrett, qualified himself as an expert witness in investigation of auto accidents. He testified that he and Officer Roberts had been called to the scene of the accident shortly after its occurrence and took measurements and pictures of skid marks, gouge marks, oil marks, gasoline marks and marks upon the berm of the highway from the Presser car. Without objection this witness testified that the point of impact of the two vehicles was in the north lane of the west-bound lane of traffic seventy feet west of the center of the west drive of the trailer park. This officer also without objection, testified concerning the point of impact on the Presser car and also on the appellee's car. However, when on direct examination, Officer Jarrett was asked if he could tell, from his observation made at the scene of the accident of the marks on the pavement and the cars themselves, how the cars were positioned when the impact occurred, appellant objected on the grounds that it was calling for a conclusion of the witness. The court overruled this objection and this testimony was included in the record.

As one of the specifications of error in her motion for new trial, appellant has urged error of law by the court in permitting, over her objection, Officer Jarrett to testify on the above matter. Here follows specification number 4 contained in appellant's motion for a new trial:

'4. Errors of law occurring at the trial of this cause and objected to by plaintiff as follows:

'A. The Court erred in overruling the objection of the plaintiff by her attorney William L. Peck to the defendant's following question propounded by the defendant by his attorney Robert Shearer, during the direct examination of Gene Jarrett, a witness called on behalf of the defendant, and in admitting the answer thereto in evidence, which question, objections, answer and the ruling of the court thereon are in the following words, to-wit:

'QUESTION BY MR. SHEARER, DEFENDANT'S ATTORNEY:

'Q. From your observation, made at the scene of the accident of the marks on the pavement and the cars themselves, can you tell us how the cars were positioned when the impact occurred?

'MR. PECK, PLAINTIFF'S ATTORNEY:

'To which we object. It is calling for a conclusion of the witness. The jury can do that.

'JUDGE STEWART:

'If this man can tell by the markings, the impact, the cars themselves, in what position they were relative to each other at the time of the impact, he may do so. He could say whether he can or whether he can't.

'MR. PECK:

'That's relative to each other but not relative to the highway, is that right Judge?

'JUDGE STEWART:

'Well, relative to each other. The cars in the beginning * * *

'MR. PECK:

'As I understand it, the cars relative to each other could be in any direction as long as they are--Now he is going to talk about the cars only. Is that right?

'JUDGE STEWART:

'I don't know whether he can link the cars up or not, but the question here, as I understand it, the relative position of the automobiles at the time of impact. If he can determine it from markings, he may say so.

'MR. PECK:

'I want my objection registered. It calls for a conclusion of the witness who was not there and who knows nothing but what he saw of the cars several minutes after the accident happened when they were a long distance apart.

'JUDGE STEWART:

'Objection overruled.

'A. Yes sir.

'Q. You tell us in your own words, from your observation from the markings upon the highway, the cars themselves, that position the cars were in at the point of impact.

'A. From the evidence on the highway and the damage to both vehicles, the Presser car was on the north side facing north, the rear to the south. The police car was----

'MR. PECK:

'Now to which I object if the Court please. I move that you strike it out. He doesn't say anything about the relative position of the cars at all. He is talking about position on the highway.

'JUDGE STEWART:

'He said it was in the north position and he hasn't said where the other car was.

'MR. PECK:

'He is talking about a position on the highway. A man who wasn't there and don't know how the accident happened.

'JUDGE STEWART:

'If the evidence can be determined. And he has said that it can be, he has a right to testify.

'MR. PECK:

'Well isn't that a conclusion of the witness your honor?

'JUDGE STEWART:

'Not if it is ascertainable from the facts that existed there.

'MR. PECK:

'How could he ascertain the direction of a car from a dent on the side of it?

'JUDGE STEWART:

'From the markings on the pavement, the impact, he has said that from all of those things he can determine the position of the cars relative to each other. If he can go as far as to direction, I think he has a right to do that. If it can be ascertained. Not a guess but if it can be ascertained from the facts as they existed there that night.

'A. The Presser car was in northsouth direction. The front of the car facing north. The police car was in the act of turning and was headed in a south----

'MR. PECK:

'Now to which we object and move that you strike out the police car was in the act of turning----

'JUDGE STEWART:

'Well wait, he...