Slinkard v. Babb

• Decision Date: 12 June 1953
• Docket Number: No. 18289,18289
• Citation: 125 Ind.App. 76,112 N.E.2d 876
• Parties: SLINKARD v. BABB et al.
• Court: Indiana Appellate Court

Page 876

112 N.E.2d 876

125 Ind.App. 76

SLINKARD v. BABB et al.

No. 18289.

Appellate Court of Indiana, in Banc.

June 12, 1953.

Kelley, Arnold & Kelley, Anderson, Vincent Kelley, Anderson, Emmanuel H. Baugh, Evansville, Sanford Trippett, Princeton, for appellant.

Ortmeyer, Bamberger, Ortmeyer & Foreman, Evansville, Gerald E. Hall, Princeton, for Homer R. Wilson.

Waller, McGinnis & Merrill, Evansville, and McDonald & McDonald, Princeton, for Glenn Babb.

BOWEN, Judge.

This is an appeal from a judgment rendered in a cause in which the court below sustained written motions of both defendants, the appellees herein, for a directed verdict, and instructed the jury to find for the appellees.

The questions in this appeal are confined to the issues joined on the appellant's first paragraphs of complaint, the defendants' answer and the reply thereto, and the evidence introduced at the trial in support of such paragraph of complaint. This paragraph of complaint sought damages for personal injuries sustained in an automobile accident.

The errors assigned for reversal and not waived are, that the court erred in sustaining the motion of both appellees to give to the jury at the conclusion of plaintiff's evidence in chief a peremptory instruction to return a verdict in favor of each of the defendants; and in so peremptorily instructing the jury; and that the decision of the court is not sustained by sufficient evidence and is contrary to law.

It is well settled that the trial court may, and it is its duty upon proper request, to direct a verdict for the defendant in cases where the evidence most favorable to the plaintiff, together with all reasonable inferences which a jury might draw therefrom, is insufficient to establish one or more facts essential to the plaintiff's right of action. Patterson v. Southern R. Co. of Ind., 1912, 52 Ind.App. 618, 99 N.E. 491; Cleveland, C., C. & St. L. R. Co. v. Haas, 1905, 35 Ind.App. 626, 74 N.E. 1003; Tabor v. Continental Baking Co., 1941, 110 Ind.App. 633, 38 N.E.2d 257.

The foregoing rule only applies where it clearly appears that the evidence fails to establish one or more of the facts essential to a recovery, and where the facts and the reasonable inferences which may be drawn therefrom are not disputed and where the only possible inference to be drawn therefrom is favorable to the party asking the instruction. Lyons v. City of New Albany, 1913, 54 Ind.App. 416, 103 N.E. 20; Roberts v. Terre Haute Electric Co., 1905, 37 Ind.App. 664, 76 N.E. 323, 895; Cleveland, C., C. & St. L. R. Co. v. Gossett, 1909, 172 Ind. 525, 87 N.E. 723.

The principal questions for our determination in passing upon appellant's assignments of error is whether, considering only reasonable inferences favorable to the appellant, such appellant was guilty of contributory negligence as a matter of law, and whether there was sufficient evidence to go to the jury on the question of the negligence of the appellees.

The substantial facts in this case are not in dispute and the circumstances leading up to the accident in question are as follows:

Appellant, with his wife and two children, with two hunting dogs in the rear compartment of the car, were returning from a vacation trip. Appellant was operating his Ford automobile on the highway approaching the Evansville-Henderson bridge which crosses the Ohio river. The highway was icy in spots and one of the witnesses testified that the condition of the surface of the highway on the bridge was solid ice. The appellant was driving his car, at a speed of approximately fifteen miles per hour, about 10:30 p. m., up an incline in a northerly direction approaching the bridge proper and following a car about twelve feet ahead of him in the line of traffic on the East or right-hand side of the highway. The appellee Babb was operating his car following the appellant Slinkard, and after the cars were one-fourth of the way across the bridge Babb ran his car into the back end of appellant's car knocking it into the rear end of the car ahead. Appellee Babb was traveling twenty to twenty-five miles per hour at this time. The car ahead of appellant moved on, stopping only momentarily, and it moved on across the bridge and disappeared. The impact between Jabb's car and Slinkard's car broke the front bumper guard from the bumper of appellant's car. Appellant stopped his car with only a few feet separating the back bumper of his car and the front bumper of appellee Babb's car. Following the impact Slinkard got out of the left front door of his car and picked up the bumper guard, which had been broken off by the force of the collision with the car in front, and put it in the car. He then went immediately to the back of his car and was standing between the back of his car and the Babb car where he met Babb. In a matter of seconds, and not more than one minute after the original impact between his car and Babb's car, the car of appellee Wilson approached from the South. The appellant saw the lights of Wilson's car and tried to jump to the East but was caught between the bumpers of his car and Babb's car as Wilson's car crashed into the rear of Babb's car, and he was injured seriously and permanently. All of the cars were in the driving lane of the bridge which was divided into three lanes and the center lane and the West lane of the bridge at the time were clear of traffic. The bridge and the approach to the bridge is straight for about six-tenths of a mile to the South from where the appellant's automobile was crashed into by the appellee's automobile and there was nothing in that six-tenths of a mile to obstruct the view. The impact caused by the striking of the Babb car by Wilson's car, forcing it against appellant's car and injuring him between the two automobiles, forced the appellant's automobile from thirty to thirty-five feet up an incline, and witnesses described the crash as 'a real loud crash'--'a terrific crash'. There was some evidence that Wilson's breath smelled of liquor immediately following the crash.

The appellees requested that judicial notice be taken of the common law and statutes of the Commonwealth of Kentucky insofar as the same were applicable to the issues and evidence in this case. This state recognizes the general rule that if an action to recover damages for a tort that was committed in one jurisdiction is brought in another jurisdiction, the law of the place where the tort was committed controls as to liability for the tort. Clark v. Southern R. Co., 1919, 69 Ind.App. 697, 119 N.E. 539. While the law of Kentucky clearly controls this case, this court will presume that the common law as recognized in Indiana is the same as the common law as recognized in the state of Kentucky until the contrary is shown. Baltimore & O. S. W. R. Co. v. Reed, 1902, 158 Ind. 25, 62 N.E. 488, 56 L.R.A. 468; Morley v. Cleveland, C., C. & St. L. R. R. Co., 1935, 100 Ind.App. 515, 194 N.E. 806. The appellees insist that the case of Hedgecock v. Orlosky, 1942, 220 Ind. 390, 44 N.E.2d 93, is controlling in this case in that there are no Kentucky cases to the contrary with factual situations analogous to the case at bar. In Hedgecock v. Orlosky, supra, the court held that the acts of the plaintiff in such case constituted contributory negligence as a matter of law. However, the language of the court in this case clearly shows that...