Sheets v. Voland

• Decision Date: 14 May 1954
• Docket Number: No. 18451,18451
• Citation: 124 Ind.App. 695,119 N.E.2d 325
• Parties: SHEETS v. VOLAND.
• Court: Indiana Appellate Court

Page 325

119 N.E.2d 325

124 Ind.App. 695

SHEETS v. VOLAND.

No. 18451.

Appellate Court of Indiana, In Banc.

May 14, 1954.

Campbell, Gemmill, Browne, Ewer & Torrance, Marion, Jerry W. Torrance, Jr., Richard E. Sisson, Marion, of counsel, for appellant.

Brown & Shadle, Marion, Albert W. Ewbank, Indianapolis, for appellee.

KENDALL, Presiding Judge.

This is an action for damages resulting from personal injuries suffered by appellee when he was struck by an automobile operated by appellant on Thirty-eighth Street Road, also known as Soldiers' Home Road, in Grant County, Indiana.

The trial was had to a jury resulting in a verdict for appellee in the sum of $10,000, upon which judgment was entered.

The appellant charges error in overruling his motion for new trial which specifies eight grounds therefor, four of which are specifically waived by the appellant, leaving for our consideration the following:

'(2) The verdict of the jury is not sustained by sufficient evidence; (3) The verdict of the jury is contrary to law; * * * (6) The court erred in giving on its own motion instruction number seven, and (7) The court erred in giving appellee's tendered instruction number five.'

Under his assignment (2) and (3) which he chooses to discuss together, the appellant states two propositions--first, that the evidence most favorable to the verdict fails to show any negligence on his part, and, second, that such evidence shows contributory negligence as a matter of law on the part of the appellee. A discussion of the questions presented requires a brief summary of the facts.

On the morning of December 10, 1945, at about 6:35 a. m., the appellee had driven his car from his home, 2 1/2 miles to the point of the accident which was approximately 250 feet west of a bridge over the Mississinewa River on Thirty-eighth Street Road. The road was wet and sticky snow was falling. Prior to stopping his car, appellee had driven the same for some distance securing vision therefor by opening the left door and looking outward. The windshield wiper had become frozen which obscured the vision. At the point involved, appellee pulled his car to the north side of the highway and stopped, leaving the left wheels on the concrete pavement one foot; that the concrete portion of the highway where the car had stopped was 18 feet wide. The evidence was uncontradicted that the lights, including taillights, were burning on appellee's car at the time appellant first observed the stopped car and appellee leaning over left front fender. There was a berm along the road to the north of where said car stopped 6 feet wide. The appellee testified that he got off the road as far as he could. There was evidence that the berm sloped down to a ditch about 8 feet deep; that after stopping, appellee got out, wiped the driver's side of the windshield and then saw the radiator steaming and raised the hood, at which time he noticed a car coming in a westerly direction. Appellee testified that he waited until the car passed and then removed the radiator cap; that he was standing beside the left front fender and when the cap was removed, steam went up in the air, at which time he drew back from the car in the roadway a distance of 30 inches and had taken two or three steps toward the left door of the car when he was struck by the right front fender of appellant's car.

The appellant testified that as he traveled westwardly his car lights were burning but did not recall whether they were bright or dim; that he was driving 25 to 30 miles per hour; that he saw appellee's car in the stopped position as he approached the east side of the bridge, going west, and noticed the taillights thereon; that at the bridge he noticed a man leaning on the left front fender of appellee's car; that as appellant's car passed appellee's car, the middle of appellant's car was in the center of the highway; that his car was approximately 5 1/2 feet wide. Appellant further testified that he still saw appellee leaning over the left front fender until he got about even with him, and appellant further said, 'the first thing I knew he was out in the middle of the road with his arms up over his face', at which time he struck appellee; that the body of appellee went over appellant's car hood to the south side of the road. The appellant further testified that the appellee's feet were near the pavement, his head lying to the south thereof. There was other evidence that appellee's body was thrown 28 feet west of appellee's stopped car and onto the south side of the road; that appellant stopped his car 100 feet west of where appellee was struck and that in answer to a question as to what he (appellant) did with his car after hitting appellee, appellant answered, 'I turned it off, turned the lights back on, ran back to the man'. It is conceded by the appellant that the appellee was seriously injured.

We think the evidence clearly shows a duty owing to the appellee by the appellant which he failed to discharge whereby the appellee was injured. When the appellant was more than 200 feet away, he saw appellee's stopped car on the edge of the highway and observed appellee standing against the left front fender, leaning over the hood. Notwithstanding the observation thereof and the slippery condition of the highway, appellant drove his car with unslackened speed within 30 inches of...