Reitz v. Hodgkins

• Decision Date: 25 April 1916
• Docket Number: 22,955
• Citation: 112 N.E. 386,185 Ind. 163
• Parties: Reitz v. Hodgkins
• Court: Indiana Supreme Court

112 N.E. 386

185 Ind. 163

Reitz v. Hodgkins

No. 22,955

Supreme Court of Indiana

April 25, 1916

Rehearing Denied June 28, 1916.

From Gibson Circuit Court; Simon L. Vandeveer, Judge.

Action by Elbert Hodgkins against Paul G. Reitz. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1914, Acts 1901 p 590.)

Affirmed.

Cunningham & Ortmeyer and Foster & Wheeler, for appellant.

John R Brill, Frank H. Hatfield and John W. Brady, for appellee.

Cox, J Spencer, J., not participating.

OPINION

Cox, J.

This appeal is from a judgment in the court below in favor of appellee for damages for personal injury alleged to have been sustained by him through the negligence of appellant in driving his automobile on Main street in the city of Evansville whereby a collision with appellee, who was also using the street as the rider of a motorcycle, was caused. The issue formed by an answer of general denial of the averments of appellee's complaint was tried by jury, which returned a verdict for appellee and on this verdict the judgment, which is the basis of this appeal, was rendered.

Two rulings of the trial court are assigned as errors, which are relied on for reversal: Overruling appellant's motion for venire de novo, and overruling his motion for a new trial.

Among the causes assigned for a new trial and for which a reversal is now asked are those asserting that the evidence is insufficient in fact and in law to sustain the verdict. It is claimed that the evidence shows that the appellee, himself, was guilty of negligence which produced his own injuries. It is clearly apparent that this claim is based, not only on that part of the evidence most favorable to appellant, but on some speculative, if not indeed rather fanciful, deductions from it. A reversal can not, of course, be asked on such support with any serious claim for consideration when there is other evidence conflicting with that relied on and more favorable to the appellee. There is no room for contention that there is not in the record abundant evidence of the latter character. The rule that when a reversal is asked in such a case as this, on the ground that the evidence is insufficient to support the verdict, this court will consider only the evidence most favorable to appellee is so elementary and has been stated so many times that the mere statement of it suffices without the citation of cases in support of it.

Appellant claims that he was driving his automobile at a moderate rate of speed and that appellee, riding his motorcycle at a very rapid rate of speed, ran it into appellant's vehicle and caused his own injuries. This contention is supported only as we have indicated above. In support of the verdict the evidence most favorable to appellee warranted the jury in finding the following facts relevant to this and the other elements of the cause to be the truth: On the night of October 6, 1911, at about 10:30 o'clock, appellee was riding his motorcycle northward along the right side of Main street, the principal business street of the city of Evansville; that the light of his vehicle was burning; that his purpose was to continue north on Main street; that as he approached Fifth street, which intersects Main street, he saw appellant's automobile approaching on Main street from the north, but on the opposite side of the street from that on which appellee was traveling. The automobile was driven by appellant, who had with him several friends. It was a very heavy sixty-horse power machine, the top of which was down. Rain had begun falling shortly before. Appellant was going to his garage and shelter about a square east from Main street on Fifth street. When the front wheel of appellee's motorcycle had cleared the street intersection and passed the north curb of Fifth street, near the northeast corner of that street and Main street, the rear wheel of it was struck by the left front wheel, spring, fender and lamp of appellant's automobile, which had been so turned by him as to "cut" the northeast corner of the two streets to go on to his garage. At the point of the collision the automobile was on the left side of Fifth street and only two or three feet from the curb at the corner. There is evidence of eyewitnesses that at the time of the collision and immediately preceding it, appellant was driving his automobile twenty-five or thirty miles an hour and that appellee was proceeding on his motorcycle eight or ten miles an hour. The condition of both the motorcycle and the automobile after the collision supports the direct testimony of witnesses that the latter ran into the former, and that the collision caused a compound fracture of one of the bones of appellee's left leg below the knee. He was thrown into the air against a lamp post, and rebounded into the street about eighteen feet north of the point of collision. Where the bone of appellee's leg was broken there was a severe bruise where the flesh sloughed off. Appellee was twice in hospitals for operations and care, and the time so spent, together with the time he was at home disabled, amounted at the time of the trial to about nineteen months, and at that time the fracture had not knit and become sound. He also suffered from a persistent ulcer resulting from the injury.

The jury might well have found appellant guilty of a very palpable act of negligence in cutting the corner under the circumstances of the facts detailed; and this would be so aside from the existence of any rule of the road or special traffic regulations, which expressly prohibited such an act, for in any event appellant would be held to the exercise of ordinary care to avoid collision with and injury to others, in approaching and turning into an intersecting street. Appellee, in pursuing his course and exercising due care, was not, to absolve himself from a charge of contributory negligence, bound to anticipate that appellant would so violate his duty of reasonable care as to turn his automobile, running at a speed of twenty-five or thirty miles an hour, and run it as near as two or three feet of the left-side curb of Fifth street. It is difficult for an unbiased mind to see that the jury could have done other than find...