Reynolds v. Langford

• Decision Date: 13 March 1961
• Docket Number: No. 30073,30073
• Citation: 241 Ind. 431,172 N.E.2d 867
• Parties: Frances Evelyn REYNOLDS, Administratrix of the Estate of James C. Reynolds, Deceased, Appellant, v. Billy LANGFORD, Appellee.
• Court: Indiana Supreme Court

Page 867

172 N.E.2d 867

241 Ind. 431

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

No. 30073.

Supreme Court of Indiana.

March 13, 1961.

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

Peck, Scott & Shine, Anderson, for appellee.

BOBBITT, Chief Justice.

This case comes to us on petition to transfer from the Appellate Court under Acts 1933, ch. 151, § 1, p. 800, being § 4-215 Burns' 1946 Replacement. See Reynolds v. Langford, 1960, 166 N.E.2d 873, for opinion of the Appellate Court.

This is an action under Acts 1937, ch. 259, § 1, p. 1229, being § 47-1021, Burns' 1952 Replacement, for the alleged wrongful death ¹ of one James C. Reynolds who was 'being transported without payment therefor' in an automobile owned and operated by the appellee herein.

The sole error assigned is the overruling of appellant's motion for a new trial.

We need only consider specification 3 thereof which presents the question: Did the trial court err in sustaining defendant-appellee's motion for a directed verdict tendered at the conclusion of plaintiff-appellant's case-in-chief?

The trial court may properly give a peremptory instruction to find for the defendant '[w]hen 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.' Whitaker, Admr. v. Borntrager, 1954, 233 Ind. 678, 680, 122 N.E.2d 734; Johnson v. Estate of Gaugh et al., 1955, 125 Ind.App. 510, 519, 124 N.E.2d 704; Vann v. Vernon General Ins. Co., 1956, 126 Ind.App. 503, 133 N.E.2d 70, 134 N.E.2d 235.

The trial court was justified in sustaining a motion for a directed verdict in the present case unless there was some evidence of probative value from which the jury might have found, or from which a proper inference might have been drawn, that appellee was conscious of his conduct as he entered the intersection of the highways; that he knew of the existing conditions surrounding such intersection as he approached it; that he knew that injury to his passenger would probably result if he proceeded into the intersection with reckless indifference to the consequences; and that he consciously and intentionally failed to stop at a preferential highway, as the result of which his passenger, James C. Reynolds, was killed. Bedwell v. DeBolt, 1943, 221 Ind. 600, 607, 50 N.E.2D 875; Brown v. Saucerman, 1958, 237 Ind. 598, 602, 145 N.E.2d 898, 899.

The complaint alleges in part here relevant that at about 11:30 p. m. on September 10, 1955, the decedent, James C. Reynolds, was riding as a guest in an automobile owned and operated by appellee-Langford; that such automobile was traveling north upon what is commonly known as Main Street Road in Madison County, Indiana; that such road is paved and intersects State Road 67 approximately one mile south of the city limits of Anderson, Indiana; that State Road 67 is a heavily traveled paved road; and that there are 'stationary stop signs erected at said intersection requiring traffic on Main Street Road to stop before entering' the intersection.

'That the defendant, Billy Langford, was guilty of wanton and wilful misconduct in this, to-wit: that he drove his automobile at an excessive rate of speed, to-wit: In excess of forty (40) miles per hour into said intersection without stopping or slowing down into the side of a truck, traveling west on State Road 67 with such force and violence as to completely demolish said automobile and to cause said truck to run off the paved portion of said highway and upset; that the decedent as a result of said crash and collision was thrown from said automobile onto the pavement of said intersection and killed instantaneously.'

The evidence most favorable to plaintiffappellant may be summarized as follows:

State Road 67 runs generally east and west at the point of intersection with Main Street Road which runs generally north and south. It is a three-lane preferential highway paved to a width of 30 feet. Main Street Road is surfaced with black top and is 18 feet wide. There are standard octagon-shaped stop signs at the intersection, one on the south side of State Road 67, and one on the north side. The sign on the south side is on the east side of Main Street Road just outside the intersection and is visible to vehicles approaching from the south. When approaching the intersection from the south the view is clear and unobstructed to the east.

The only eye witness to the collision testified that about 11:25 p. m. on Saturday (September 10, 1955), while he was waiting in the center lane of State Road 67 to make a left turn north on the Main Street Road, he noticed an automobile approaching the intersection from the south. He first saw the automobile when it was approximately 400 feet from the intersection, and at that time it was traveling at a speed of 50 or 60 miles per hour and continued at this speed into the intersection. He also observed a truck about 500 or 600 feet east of the intersection (traveling west). The lights were burning on both the truck and the automobile and it was 'drizzling rain' at the time; that the automobile entered the intersection without stopping and struck the truck which was traveling west in the right (north) lane of State Road 67. The truck overturned on the north side of the road about 60 or 70 feet from the point of contact, and the car 'bounced' and 'turned' facing northwest in the center lane of State Road 67.

A sergeant of the Indiana State Police who arrived at the scene of the accident at about 11:35 p. m. testified that it was raining at the time he arrived and the pavement was wet; that the front and right side of the automobile was almost completely demolished; and that it was 'quite a broad intersection' and there were skid marks extending from the point of impact for about 20 feet within the intersection.

This witness further testified that he had a conversation with appellee on or about October 7, 1955, at the home of a relative and in the presence of appellee's brotherin-law and his sister in which he told the witness that he and the deceased-Reynolds had gone out on Main Street Road the evening of the accident and were following another car in which there were two girls. They followed the car south on Main Street Road until they discovered there was a man in the car, whereupon they turned around and drove back north toward town. In reply to the question, 'Tell what you said and what he said', this witness answered:

'I explained to Mr. Langford that I hadn't completed my investigation of the accident and I wanted his version of the accident. He told me that he had gone out on Main Street Road that particular evening, he and Mr. Reynolds. * * * He told me he knew there was a stop sign at the intersection. However, he didn't see it and didn't realize he was in the intersection until too late. He saw something coming. He didn't know whether it was a car or truck and that was the last he remembered.'

The other principal witness testified that she lived about...