Sili v. Vinnedge

Decision Date28 August 1979
Docket NumberNo. 3-978A215,3-978A215
Citation181 Ind.App. 658,393 N.E.2d 251
PartiesPamela SILI, Appellant-Plaintiff, v. David R. VINNEDGE, Appellee-Defendant.
CourtIndiana Appellate Court

John H. Gautier, David V. Bent, Bingham, Loughlin, Means & Mick, Mishawaka, for appellant-plaintiff.

John J. Lorber, May, Searer, Oberfell & Helling, South Bend, for appellee-defendant.

CHIPMAN, Judge.

Appellant Pamela Sili sued David Vinnedge for personal injuries she received while she was a guest passenger in an automobile driven by Vinnedge in Mishawaka, Indiana. 1 At the close of the evidence the court directed a Judgment on the Evidence based on a Motion by the defendant under Ind. Rules of Procedure, Trial Rule 50(A). Appellant appeals, challenging the court's ruling as contrary to law and asserting the court improperly weighed the evidence in reaching its decision.

We agree with appellant and reverse.

FACTS

On September 20, 1971, appellant obtained a ride home from school with Vinnedge. Also in the car were Carol King and Greg Kirk. Appellant sat in the back seat and King and Kirk sat in the front with Vinnedge. The car was a Gremlin X, with a three speed stick shift and wide tires.

The route Vinnedge would take from the high school was north on Willow Street to a four-way stop at the intersection of Willow and Battel. A right turn would be taken onto Battel which, after a curve, became Merrifield Street. Vinnedge testified he had driven the route twenty-five to thirty times.

Appellant remembers very little of the trip. Carol King turned around and spoke to her. Appellant does not recall anyone complaining to Vinnedge about his driving, nor does she recall any thing unusual about Vinnedge's conduct. She does remember saying "look out" at some point in time, but cannot recall exactly when.

Janetta Kelly picked up her son at the high school that afternoon. Her car was in line directly behind Vinnedge's and one Jeff White's car, with Vinnedge being the first in line. She observed both cars leave the parking lot "going very fast," and said she heard Vinnedge spin his wheels as he left the lot. She also smelled burning rubber and saw black tire marks on the pavement. As Vinnedge pulled out of the lot, he almost collided with another car and "nearly lost control of his car." Ms. Kelly's route home was the same as Vinnedge's but she lost sight of his car presumably because of the difference in speed. She estimated the elapsed time from the high school to the scene of the accident to be one and a half to two minutes.

Paul Fjerstad was a passenger in the car that followed Vinnedge from the high school. (This was presumably Jeff White's car, but Fjerstad did not recall the driver.) He remembers that Vinnedge made a "normal" right hand turn onto Battel. Fjerstad apparently watched Vinnedge's car while it went through the curve as he testified the car hit the right curb, bounced off, and then he thought Vinnedge regained control, but "all of a sudden" the car turned sharply left into a tree. He did not see the car skid before it hit the curb. He estimated Vinnedge's speed entering the curve to be 45-50 miles per hour and he did not see any brake lights. Fjerstad thought the car slowed down slightly after it hit the curb. Without objection, Fjerstad said he thought excessive speed caused Vinnedge to hit the curb.

After impact, Ms. Kelly and the occupants of Jeff White's car attempted to give assistance to the injured persons in Vinnedge's car. Officer Schwartz arrived shortly thereafter.

Schwartz said the weather on September 20, 1971, was sunny and dry and the road surface was good. He observed four and a half to five feet of skid marks directly behind the car. He also noticed approximately Raymond Brach, a professor at Notre Dame with a Ph.D. in Mechanical Engineering, testified at the trial. He prefaced his expert testimony by stating his calculations were not, and could not be precise; they were only estimates. By way of technical calculations he judged Vinnedge's speed to be approximately 30-40 miles per hour through the curve. He described "breakout speed" to be that speed at which a car, going through a curve, would begin to slide or skid. Breakout speed for this particular curve was calculated to be 32-40 miles per hour. He stated a car will not make scuff marks unless it is at or near the breakout speed. Continuous scuff marks indicate the constant speed throughout the length of the marks.

three hundred feet of "scuff marks." These marks are made by a rolling tire on which the brakes are not locked up. The scuff marks on the road were made by the outside edge of Vinnedge's right front and possibly right rear tire. The scuff marks were continuous for the entire three hundred feet.

Dr. Brach also estimated the speed at impact to be 15-20 miles per hour. This figure was reached by estimating the number of inches the tree penetrated the car upon impact, with one inch roughly equalling one mile per hour. Skid marks of five feet would indicate, in Brach's opinion, that the car slowed by 15 to 20 miles per hour just prior to impact.

ISSUES

Two issues are presented for our review:

1. Whether the court erred as a matter of law when it granted Vinnedge's Motion for Judgment on the Evidence at the close of plaintiff's case?

2. Did the court improperly weigh the evidence in granting appellee's Judgment on the Evidence?

I. JUDGMENT ON THE EVIDENCE

This case is controlled by the Indiana Guest Statute, Ind. Code 9-3-3-1. 2 To be liable under the statute, the host-driver must be guilty of " wanton or wilful misconduct."

We will affirm the trial court's granting of the Motion for Judgment on the Evidence only if the evidence and all reasonable inferences would require a reasonable man, as a matter of law, to conclude that Vinnedge's conduct did not constitute wanton or wilful misconduct. Andert v. Fuchs, (1978) Ind.App., 381 N.E.2d 1081, (hereinafter cited as Andert ); McKeown v. Calusa, (1977) Ind.App., 359 N.E.2d 550. In other words, there must have been a lack of evidence and reasonable inferences to support a finding of wanton or wilful misconduct before the trial court. Andert; see Huff v. Travelers Indemnity Company, (1977) 266 Ind. 414, 363 N.E.2d 985. We think the evidence presented by appellant raised at least a reasonable inference of Vinnedge's wanton misconduct. It was therefore reversible error for the court to have granted Vinnedge's Motion for Judgment on the Evidence. Cheek v. Hamlin, (1972) 150 Ind.App. 681, 277 N.E.2d 620.

Our courts have held in order to be guilty of wanton misconduct a host-driver must: (1) be conscious of his misconduct; (2) be motivated by a reckless indifference for the safety of his guest, and (3) he must do so knowing his conduct subjects his guest to a probability of injury. Clouse v. Peden, (1962) 243 Ind. 390, 186 N.E.2d 1; Brown v. Saucerman, (1957) 237 Ind. 598, 145 N.E.2d 898; Andert; Fielitz v. Allred, (1977) Ind.App., 364 N.E.2d 786, (hereinafter cited as Fielitz ). We think a jury could have found the evidence fulfilled all three criteria.

1. At least two facts show Vinnedge may have been conscious of his misconduct. First, the car slid through the turn for approximately three hundred feet. This could indicate Vinnedge took the curve too quickly and yet persisted in holding his speed constant. Second, Vinnedge testified he had driven the same route twenty-five to thirty times. He was, therefore, familiar with the curve and perhaps knew what speed was safe and what speed was unsafe. The jury might have found these facts constituted a consciousness of misconduct.

2. "Reckless indifference" is the mental element. This is commonly shown by the host-driver's disregard of his passenger's complaints or warnings about his driving. E. g., Tutterrow v. Brookshire, (1972) 152 Ind.App. 471, 284 N.E.2d 87. However, the mental state of indifference may be inferred. E. g., Eikenberry v. Neher, (1956) 126 Ind.App. 571, 134 N.E.2d 710. The evidence of the scuff marks shows Vinnedge may have initially taken the curve too fast, but instead of decreasing his speed, held it constant until...

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8 cases
  • Stauffer v. Lothamer
    • United States
    • Indiana Appellate Court
    • 16 Abril 1981
    ...the host driver preceding the accident." Richey v. Sheaks, (1967) 141 Ind.App. 423, 434, 228 N.E.2d 429, 435; and see Sili v. Vinnedge, (1979) Ind.App., 393 N.E.2d 251; Fielitz v. Allred, (1977) Ind.App., 364 N.E.2d 786; Tutterrow v. Brookshire, (1972) 152 Ind.App. 471, 284 N.E.2d 87; Mazza......
  • Mitchell by Mitchell v. Turner
    • United States
    • Indiana Appellate Court
    • 4 Noviembre 1985
    ...applied in cases brought under the Guest Statute in an effort to better define the mental element involved. See Sili v. Vinnedge (1979), 181 Ind.App. 658, 393 N.E.2d 251, 255 (indicating that the adverse attitude or perverseness guideline is essentially the same as the mental element of rec......
  • Martin v. Roberts
    • United States
    • Indiana Supreme Court
    • 22 Junio 1984
    ...to determine a "break-out" speed or the speed that a car going through a curve would begin to slide or skid. Sili v. Vinnedge, (1979) 181 Ind.App. 658, 393 N.E.2d 251. The Court of Appeals also has held that photographs of damages sustained by vehicles were mute evidence as to the speed of ......
  • Barrow v. Talbott
    • United States
    • Indiana Appellate Court
    • 25 Febrero 1981
    ...know and conclude their conduct entailed a probability of injury, then the host is chargeable with such knowledge. Sili v. Vinnedge (1979), Ind.App., 393 N.E.2d 251. Where the host, after overtaking another car at 50 mph in a 15 mph zone, zigzags several times across a narrow road abutted b......
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