Schroer v. Edward J. Funk & Sons, Inc.

• Decision Date: 15 February 1968
• Docket Number: No. 20647,No. 2,20647,2
• Citation: 142 Ind.App. 223,233 N.E.2d 680
• Parties: Lorraine SCHROER, as Guardian of the Estate of Elvin G. Schroer, an Incompetent, Appellant, v. EDWARD J. FUNK & SONS, INC., John J. Zimmer, Jr., and Harry J. Hermanson, Appellees
• Court: Indiana Appellate Court

Page 680

233 N.E.2d 680

142 Ind.App. 223

Lorraine SCHROER, as Guardian of the Estate of Elvin G Schroer, an Incompetent, Appellant, v. EDWARD J. FUNK & SONS, INC., John J. Zimmer, Jr., and Harry J. Hermanson, Appellees.

No. 20647.

Appellate Court of Indiana, Division No. 2.

Feb. 15, 1968.

Rehearing Denied March 19, 1968.

John R. Nesbitt, Rensselaer, Clarence Borns and Thomas E. Kotoske, Call, Call, Borns & Theororos, Gary, John R. Nesbitt, Rensselaer and Clarence Borns, Gary, of counsel, for appellant.

Cope Hanley, Rensselaer, Brubaker & Wildman, Logansport, for appellees.

PFAFF, Judge.

This is an action brought by the appellant, Lorraine Schroer, against the appellees, Edward J. Funk and Sons, Inc., John J. Zimmer, Jr., and Harry J. Hermanson, for damages for personal injuries to appellant's ward, Elvin G. Schroer, growing out of a collision involving a truck and an automobile in which appellant's ward was a passenger.

On January 5, 1962, at about 8:15 A.M., C.S.T., a school bus driven by Frank O. Epler, Sr. was stopped on Highway 231 outside Rensselaer, Indiana to pick up school children. An automobile driven by Wilma J. Lewis was stopped behind the bus when a truck driven by John J. Zimmer, Jr. and owned by Edward J. Funk and Sons, Inc. collided with the rear portion of the said automobile and came to rest in the southbound lane. At about 9:00 A.M. and after the police had arrived at the scene and taken the proper precautions to prevent subsequent accidents by setting out warning flares, an automobile driven by Harry J. Hermanson and in which appellant's ward was a passenger collided with a truck driven by Arthur R. Newberry, which the officers had stopped in the southbound lane, causing injury to appellant's ward.

Trial was had by jury. At the close of appellant's evidence, appellees Edward J. Funk & Sons, Inc. and John J. Zimmer, Jr., moved the court for a directed verdict. The court sustained this motion. Also, at the close of appellant's evidence, and again at the close of all evidence, appellee Harry J. Hermanson moved the court for a directed verdict. The court overruled this motion on both occasions. The jury was unable to agree upon a verdict as to appellee Harry J. Hermanson and the jury was subsequently discharged. The cause was reset for trial as to appellee Harry J. Hermanson. Appellant filed a motion for a new trial, which was overruled and judgment was entered for appellees, Edward J. Funk & Sons, Inc. and John J. Zimmer, Jr., in accordance with the directed verdict as given to them by the court. The judgment reads as follows:

'It is therefore considered, ordered, adjudged and decreed by the court that the plaintiff take nothing by her complaint as against the defendants Edward J. Funk & Sons, Inc. and John J. Zimmer, Jr., and that said defendants recover of the plaintiff their costs and charges in this action laid out expended and taxed at _ _ dollars.'

Thereafter the appellant filed her motion for a new trial which was subsequently overruled.

The appellant assigns as error (1) that the trial court erred in overruling appellant's motion for new trial, and (2) that the trial court erred in sustaining appellee's motion for a directed verdict.

It is appellant's contention that the carelessness and negligence of the appellees, John J. Zimmer, Jr. and Edward J. Funk and Sons, Inc. was the proximate cause of the injury sustained by Elvin G. Schroer.

This court discussed the law applicable to the issue of 'proximate cause' in the case of the Pennsylvania Railroad Co. v. Huss (1932), 96 Ind.App. 71, 180 N.E. 919. Said case involved an action for personal injuries sustained by the plaintiff in a collision between an automobile in which she was riding as a guest and a freight car standing on defendant's railroad and across a public highway. This court held that the proximate cause of the injury was the negligence of the driver of the automobile in which the plaintiff was riding, and, that at most, all that could be said was that the defendant, by permitting its freight car to remain standing on said crossing, created a condition and that the injury was caused by the subsequent independent act of the driver of the automobile. In its opinion in that case, this court said:

"It was negligence as a matter of law for Miss Menzel to drive the automobile in which appellee was riding at such speed that she (Miss Menzel) could not stop the same within the distance that objects could be seen ahead of it. If the lights on said vehicle, on account of physical conditions encountered, would not delineate an object in the roadway straight ahead the distance prescribed by law, then she should have driven such automobile at such rate of speed that she could have brought it to a stop within the distance that she could plainly see the train of appellant ahead of her, and thus have avoided running the automobile into the freight car."

In Wilcox v. Urschel (1936), 101 Ind.App. 627, 200 N.E. 465, this court recognized the rule that an active, independent, effective, direct and negligent act may cut off the line of causation from any prior negligence. At page 631, at page 466 of 200 N.E. of the Wilcox case, this court said:

"Where an injury is to some extent due to two distinct successive causes, unrelated in operation, and one of them is a prior, passive, or remote cause, which does no more than furnish a condition or give rise to the occasion by which the injury was made possible, and the other cause is an active, direct, independent, effective, and intervening cause, the law is well settled that courts will, as a general rule, with but few exceptions, look only to the latter as the proximate cause and will disregard the former or remote cause. * * *" (Emphasis supplied)

The above cited case involved an action against a landowner for allowing a hedge fence to grow to such a height at a highway intersection as to obstruct the view as to approaching traffic. It was held that the hedge fence was not the proximate cause of the collision between the car in which the plaintiff was riding and another automobile. A demurrer to the complaint was sustained and on appeal, the judgment was affirmed.

In Indiana Service Corporation v. Johnston (1945), 109 Ind.App. 204, 34 N.E.2d 157, it was held that the essential element of proximate cause is the requirement that the result must be such as might reasonably have been anticipated in the ordinary experience of men.

A fact situation similar to the one in the case at bar is presented in Slinkard v. Babb, Wilson (1954), 125 Ind.App. 76, 112 N.E.2d 876, reh. denied, 125 Ind.App. 87, 117 N.E.2d 564. In Slinkard, the trial court granted a motion for directed verdict on the following facts:

'1. Slinkard, the plaintiff, was operating his vehicle on an icy highway at might and was crossing the Evansville-Henderson bridge over the Ohio River.

'2. The highway was icy in spots and the surface of the bridge was solid ice.

'3. Babb, the defendant, was following Slinkard.

'4. One-fourth (1/4th) of the way across the bridge, Babb ran into the rear of the Slinkard car.

'5. The Babb car and the Slinkard car came to a rest a few feet apart.

'7. In a matter of seconds, and not more than a minute, Wilson ran into the rear of the Babb car injuring Slinkard.

'8. Slinkard brought suit against both Babb and Wilson.'

This court spoke as follows:

'* * * Babb's acts did not more than furnish a condition by which the subsequent injury to the appellant was made possible, and under the rule of proximate cause, both in this state and in Kentucky, Babb's act cannot be held to be the proximate cause of the injuries to the appellant. * * *...