Reynolds v. Langford

• Decision Date: 29 April 1960
• Docket Number: No. 19249,No. 2,19249,2
• Parties: Frances Evelyn REYNOLDS, Administratrix of the Estate of James C. Reynolds, Deceased, Appellant, v. Billy LANGFORD, Appellee. *
• Court: Indiana Appellate Court

Page 873

166 N.E.2d 873

Frances Evelyn REYNOLDS, Administratrix of the Estate of James C. Reynolds, Deceased, Appellant, v. Billy LANGFORD, Appellee. ^*

No. 19249.

Appellate Court of Indiana, Division No. 2.

April 29, 1960.

Rehearing Denied June 6, 1960.

Harold J. Anderson, Anderson, Campbell, Gemmill, Browne, Torrance & Sisson, Marion, for appellant.

O'Neill, Scott & Schrenker, Anderson, for appellee.

KELLEY, Judge.

At the conclusion of appellant's evidence, the court, on motion of appellee, directed the jury to return a verdict for appellee. Upon such returned verdict, the court entered judgment adverse to appellant. The propriety of the action so taken by the court presents the only question on this appeal.

Appellant's complaint charged appellee with wanton and wilful misconduct in that he drove an automobile, in which appellant's decedent was riding as a guest, in excess of 40 miles per hour into the intersection of State Road 67 with Main Street Road in Madison County, Indiana, and into the side of a truck, without stopping or slowing down said automobile, and that as a result of said collision the decedent was thrown onto the pavement of the intersection and instantly killed.

In approaching a solution of the pending question, it is well to consider the 'compelling laws' as stated in Whitaker, Administrator, etc., v. Borntrager, 1954, 233 Ind. 678, 680, 681, 122 N.E.2d 734, namely: The trial court may properly give a peremptory instruction to find for the defendant,

'When there is a total absence of evidence or legitimate inference in favor of the plaintiff upon an essential issue; or where the evidence is without conflict and is susceptible of but one inference and that inference is in favor of the defendant. Jackson Hill Coal & Coke Co. v. Bales, 1915, 183 Ind. 276, 279, 108 N.E. 962. Slinkard v. Babb, 1953, 125 Ind.App. 76, 112 N.E.2d 876, 878, and cases there cited. Gregory v. Cleveland C. C. & I. R. Co., 112 Ind. 385, 388, 14 N.E.2d 228.

'* * * The court will not weigh the conflicting evidence or inferences but will consider only the evidence and inferences that are most favorable to the party against whom the motion for a peremptory verdict is directed. Jackson Hill Coal & Coke Co. v. Bales, 1915, 183 Ind. 276, 280, 108 N.E. 962, supra; American Food Co. v. Halstead, 1905, 165 Ind. 633, 638, 76 N.E. 251. See also Heath v. Sheetz, 1905, 164 Ind. 665, 667, 74 N.E. 505; Slinkard v. Babb, 1953, 125 Ind.App. 76, 112 N.E.2d 876, 878, supra, and cases there cited.

'In determining whether a peremptory instruction should be given the court must accept as true all facts which the evidence tends to prove and draw, against the party requesting such instruction, all inferences which the jury might reasonably draw. Orey v. Mutual Life Insurance Company of New York, 1939, 215 Ind. 305, 306, 19 N.E.2d 547; Holtz v. Elgin, etc. Ry. Co., 1951, 121 Ind.App. 175, 98 N.E.2d 245; Chacker v. Marcus, 1949, 119 Ind.App. 672, 674, 86 N.E.2d 708, Id., 119 Ind.App. 679, 89 N.E.2d 455; Balzer v. Waring, 1911, 176 Ind. 585, 594, 95 N.E. 257, 48 L.R.A.,N.S., 834.'

See, also, Worster v. Caylor et al., 1953, 231 Ind. 625, 628, 110 N.E.2d 337, 339, wherein it is said:

'A peremptory instruction may be given when there is an absence of evidence to establish one or more of the elements essential to plaintiff's right to recover' and cases cited.

We now consider the evidence given on behalf of appellant in support of her complaint in the light of the aforementioned legal principles, and said complaint will be deemed amended to conform to such evidence. Our delineation of the evidence is taken largely from appellant's recitation thereof and to which appellee raises no objection:

About a mile south of the city limits of Anderson, Indiana, State Road 67, a 30 foot wide three lane paved preferential highway runs east and west at the point where it is intersected by an 18-foot wide two-lane north and south paved road known as Main Street Road. The intersection and the roads leading thereto are level. The southeast corner of the intersection is vacant land and the unobstructed view of the traffic to the east on State Road 67 as the intersection is approached from the south on Main Street Road is between 600 to 800 feet. At the south side of the intersection on the right side of Main Street Road is an octagon-shaped stationary stop sign, visible to the driver going north on Main Street Road.

On September 10, 1955, appellee was driving and operating a 1952 Pontiac five passenger coupe, accompanied by the decedent; at about 11:15 to 11:12 p. m. of said day, appellee went to the home of a female acquaintance about two miles south of said State Road 67 and requested her to get out of bed and go out with him to a place designated as Cozy Corner, which she refused to do. Appellee, with the decedent, drove away between 11:15 and 11:20 p. m. to Main Street Road and turned on that Road toward said State Road 67. It was raining and the pavement was wet. Appellee drove into the intersection at a speed of 60 miles per hour, without stopping before doing so, and into the side of a large loaded semi-tractor truck, which was then proceeding in a westerly direction in the north lane of said State Road 67, and as a result of the collision the decedent was thrown from appellee's car onto the highway approximately sixty feet from the point of impact and died instantly. As a result of the collision the truck went off the highway at a point from 75 to 100 feet west of the intersection, knocked down a utility pole, turned over and came to rest on its side. Photographs showing the intersection and the immediate vicinity thereof, the truck and appellee's automobile taken after the accident, were put into evidence.

There was only one eye witness to the accident who testified. Neither appellee nor the driver of the truck were called to testify. The witness, Henry Sweitzer, related:

'Upon September 10, 1955, I had occasion to observe an accident at the intersection of State Road 67 and Main Street Road in Madison County, Indiana. It was about 11:25 P.M. on Saturday. It was drizzling rain at the time. I was in the center lane of State Road 67 to make a left hand turn to turn north on Main Street Road. I was approximately 60 to 80 feet from the point of impact. While I was waiting to make the turn I noticed a car coming north on Main Street Road. I first noticed this automobile when it was approximately 400 feet from the intersection. It entered the intersection and struck a truck which was going west in the right lane of State Road 67. When it hit the truck, the truck started going off the highway on its right side of the road, knocked down a utility pole and upset about 60 or 70 feet from the point of the impact. When the automobile hit the truck it bounced and turned facing northwest in the center lane of State Road 67. This automobile did not stop before it entered the intersection. I would say that it entered the intersection going about 50 or 60 miles per hour. I did not notice any change in the speed of the automobile from the time I first saw it until it hit the truck. After the impact I noticed two injured men. One was approximately 60 feet west of where the automobile came to rest. The other was lying on the right side of the car with his feet up on the floorboard. I did not know either of them. The man that was thrown about 60 feet landed right in front of my car. I got out of the car and went to him and he took one breath after I got there and that was it. I then went to the car and the other man was lying on the right side of the car with his feet up on the floor. This automobile was a maroon Pontiac. The truck which it hit was a Ford tractor with trailer. The car hit the truck at the left door. If one turned north on Main Street Road at this intersection, it would lead him to uptown Anderson which is about three miles from this intersection. It is about a mile from the City Limits to this intersection. State Road 67 is level in the vicinity of this intersection and Main Street Road is also level in this intersection. If one approached this intersection on Main Street Road going north there is a vacant lot at the southeast corner of said intersection so the view is clear as to approaching vehicles from the east on State Road 67 as there are no buildings or other obstacles to obstruct the view. I first observed the truck approximately 500 to 600 feet east of the intersection going west. Both it and the automobile involved in the collision had on their lights. I noticed no other vehicle in the vicinity of the intersection until after I got out of my car when I noticed a car approaching from the west approximately one quarter of a mile away.'

A member of the Indiana State Police was called and arrived at the scene of the accident at about 11:25 p. m., of said September 10, 1955. He testified in material substance:

'Upon arrival I first noticed the automobile which was a few feet north of the intersection. The intersection is quite broad and there was a person lying partially out of the car on the pavement with the legs still in the right-hand side of the car. About the same time I noticed a large truck lying on its side. It was on the north side of State Road 67 from 75 to 100 feet west of the intersection. The truck was pointing west. I then noticed a body lying from 60 to 65 feet west and on the south side of State Road 67. I then approached the body lying west on the south side of the road and lifted the blanket and observed that the person was dead. I then returned to the person partially lying out of the car and observed that he was still living. I did not know the names of either of these persons at the time but later learned the name of the person lying partially in the automobile was Mr. Langford, who is in the court room today. It was raining at the time and the pavement was wet. At the scene I took some measurements and from the...