Ricks v. Emery, 19307

• Decision Date: 22 October 1962
• Docket Number: No. 19307,No. 2,19307,2
• Parties: Lucy M. RICKS, Appellant, v. William R. EMERY, Appellee. . Division
• Court: Indiana Appellate Court

Page 546

185 N.E.2d 546

134 Ind.App. 182

Lucy M. RICKS, Appellant, v. William R. EMERY, Appellee.

No. 19307.

Appellate Court of Indiana. Division No. 2.

Oct. 22, 1962.

R. Stanley Lawton, Edward J. Ohleyer, Indianapolis, Frank W. Campbell, Noblesville, Ross, McCord, Ice & Miller, Indianapolis, Campbell, Campbell, Malan & Kyle, Noblesville, of counsel, for appellant.

Richard P. Nahrwold, Indianapolis, Ralph H. Waltz, Noblesville, Bredell, Cooper &amp Martin, Indianapolis, Christian, Waltz & Klotz, Noblesville, of counsel, for appellee.

GONAS, Judge.

Appellant instituted an action to recover damages for personal injuries arising out of an automobile collision. The cause was submitted to a jury for trial. At the conclusion of Appellant's evidence, appellee filed a written motion for a directed verdict, which motion was sustained. The jury returned a verdict in favor of appellee and judgment was rendered accordingly.

Appellant filed her motion for a new trial upon the grounds that the verdict of the jury is not sustained by sufficient evidence, that the verdict is contrary to law, and 'error of law occurring at the trial and excepted to by plaintiff in that the court erred in overruling plaintiff's request for admonition of counsel.'

We find no such request for the admonition of counsel in the concise statement of the record in appellant's brief. In the argument portion of her brief appellant states that, 'as the commencement of the trial plaintiff filed her request for admonition of counsel. By this request the plaintiff sought the court to adminish counsel as follows;

'Counsel is hereby admonished to make no reference directly or indirectly to any restitution, payment or settlement made to the defendant, William R. Emery, by Francis H. Ricks, husband of the plaintiff, Lucy M. Ricks, and/or RCA."

Although it is not clear, we infer from the brief that this was a written request made before the introduction of evidence. What, if any, ruling was made on this request does not appear. Nowhere in the brief do we find any reference made in the evidence or elsewhere to such matter, and there is nothing to show how appellant could have been harmed by such ruling. Inasmuch as the court directed the jury as to what verdict should be returned there is, in this case in particular, a lack of showing of harm, and we need ot further notice this alleged error.

The following allegations of negligence are contained in #e #8 of appellant's complaint:

'(a) The defendant [appellee] negligently and carelessly failed to exercise reasonable care in maintaining a careful lookout for approaching automobiles including the 1953 Studebaker automobile in which plaintiff [appellant] was riding as a passenger.

'(b) The defendant [appellee] negligently and carelessly failed to give the right-of-way to the said 1953 Studebaker automobile in which plaintiff [appellant] was riding as a passenger.

'(c) The defendant [appellee] negligently and carelessly failed to keep the said 1952 Ford automobile under control, where by the exersie of reasonable care he could have steered his vehicle and applied his brakes to avoid the collision herein complained of.

'(d) The defendant [appellee] negligently, unlawfully and carelessly operated the said 1952 Ford automobile at the high and dangerous rate of speed of thirty five (35) miles per hour, where the fixed or prima facie speed is twenty (20) miles per hour.

'(e) The defendant [appellee] negligently and carelessly failed to apply the brakes on the said 1952 Ford automobile, and avoid said collision with said 1953 Studebaker automobile in which plaintiff [appellant] was riding as a passenger.

'(f) The defendant [appellee] negligently, carelessly and unlawfully drove and operated the said 1952 Ford automobile, when he knew or by the exercise of reasonable care should have known that the right front headlight on the said 1952 Ford automobile was not operating in such manner as to render clearly discernible persons and vehicles, including the aforesaid 1953 Studebaker, at a distance of five hundred (500) feet ahead.

'(g) The defendant [appellee] negligently, carelessly and unlawfully operated the said 1952 Ford automobile at the speed of 35 miles per hour in violation of Section 4-402 of the Municipal Code of Indianapolis, Indiana.

'(h) The defendant [appellee] negligently and carelessly operated the 1952 Ford automobile at the high and dangerous rate of speed of 35 miles per hour considering all the surrounding circumstances then and there existing.

'(i) The defendant [appellee] carelessly and negligently failed to sound a horn or any other warning to the plaintiff [appellant] herein so as to give warning of his approach.'

Proof of any one proper allegation of negligence is sufficient, 21 I.L.E. Negligence § 147.

In determining whether a verdict should have been directed we '* * * 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.' Whitaker, Admr. v. Borntrager (1954), 233 Ind. 678, 122 N.E.2d 734; Tabor v. Continental Baking Co. (1942), 110 Ind.App. 633, 38 N.E.2d 257; 28 I.L.E. Trial § 135.

From the admissions in the pleadings and from the evidence most favorable to appellant it appears that appellant and her daughter were riding in the front seat of a car owned and being operated by her husband, traveling south on North Arlington Avenue in the City of Indianapolis, approaching East 24th Street, at a speed of not over 20 miles per hour. Both appellant and her husband were employed and were on their way to work, and were going to leave the children with appellant's sister on the way to work, as they had been doing for many months. Appellee was operating an automobile in a northerly direction on North Arlington Avenue, approaching its intersection with East 24th Street. A collision occurred at the intersection at 6:51 A.M., DST. It was cold, but it was not raining or icy and there was no snow on the ground. The street was dry. It was dark, the street lights were on, and the car in which appellant was riding had its headlights on as did the other vehicles. Arlington Avenue was about 18 feet wide, with a berm on each side of about 10 feet. At the time of the accident there was no line in the center of the street. East 24th Street was about 30 feet wide. There were signs on both sides of North Arlington Avenue indicating that the speed limit was 20 miles per hour.

Appellant's husband testified as follows:

'Well, I was going south on Arlington about 150 feet from the intersection of 24th Street I put on my turn signal for a left turn, sat there a little while because a car was coming the other way and it went on north on Arlington. I looked down here against the saw no car because I could not see any approaching. I could see a car parked over here waiting to come out on Arlington, but I could not see a car down here. At that time I started to turn here and I don't know whether I was exactly in...