St. Joseph Bank & Trust Co. v. Putman, No. 369

• Docket Nº: No. 369
• Citation: 146 Ind.App. 55, 252 N.E.2d 601
• Case Date: December 03, 1969
• Court: Court of Appeals of Indiana

Page 601

252 N.E.2d 601 146 Ind.App. 55 ST. JOSEPH BANK AND TRUST COMPANY of South Bend, Executor of
the Estate of Charles O. Fulwider, Deceased, Appellant,
v.
Howard PUTMAN and Donald Cripe, d/b/a C. & P. Oil Company, Appellees. No. 369 A 44. Appellate Court of Indiana, Division No. 1. Dec. 3, 1969.
Rehearing Denied Jan. 7, 1970.

[146 Ind.App. 56]

Page 603

Milton A. Johnson, Jones, Obenchain, Johnson, Ford & Pankow, South Bend, for appellant.

Joseph D. Schmitt, South Bend, for appellees.

[146 Ind.App. 57] SULLIVAN, Judge.

Appellees, plaintiffs below, filed their complaint for property damage against appellant, as executor of the Estate of Charles Fulwider, who died in the vehicle collision from which this action arose. Following trial to a jury in which defendant presented no evidence and judgment was entered for plaintiffs-appellees in the sum of $9675.00 and costs, appellant filed its motion for new trial, the overruling of which is assigned as error upon appeal.

The evidence introduced below during plaintiffs' case in chief is as follows: On July 9, 1962, a dry, clear summer day, appellee Putman was operating and was alone in a gasoline tank truck owned by appellees. At a time between noon and 1:00 P.M. Putman was seen driving the truck north on newly blacktopped State Road 13 in Elkhart County approximately one-half (1/2) mile south of and approaching its right-angle intersection with an east-west county black top road, County Road 38, near Millersburg, Indiana. There is no dispute that at approximately 12:50 P.M. on said date, a Cadillac automobile occupied by decedent Charles Fulwider and his wife, Neva, collided with appellee's truck at said intersection. The intersection in question was straight and level in both directions. A 'stop ahead' stationary sign was located one hundred forty-three (143) feet west of State Road 13 for traffic proceeding east on County Road 38. Twelve (12) feet west of the intersection a 'stop' sign was located for County Road 38 eastbound vehicles. There were no traffic control signs or signals on State Road 13 near or at the intersection for north or south bound traffic.

Following the collision, dual wheel skid marks (the truck had dual rear wheels), 32 feet 4 inches in length were noted within the north bound lane on State Road 13 approximately twenty-one (21) feet south of the approximate center of County Road 38. Fresh gouge marks in the blacktop and pieces of chrome, glass and other debris were found entirely in the northbound lane of State Road 13 at the center of County Road 38.

[146 Ind.App. 58] There were no skid marks on County Road 38 west of State Road 13. Skid and gouge marks, uprooted grass and other matter indicated both vehicles moved, after impact, in a general northeasterly direction to points just off the east edge of State Road 13, forty-four (44) and fifty (50) feet respectively, north of the center of County Road 38. The truck came to rest upside down partially on top of the Cadillac, both vehicles facing in a general southerly direction.

The right or passenger side of the Cadillac was damaged. It had no front or left side damage. Appellees' truck had front end damage indicating a left to right or west to east force applied thereto.

Mrs. Fulwider was dead when she was extricated from beneath the dashboard on the passenger side of the Cadillac. Mr. Fulwider was on the driver's side of the vehicle and died moments after being removed therefrom.

Appellee Putman was precluded from testifying at the trial by the Dead Man's Statute, Indiana Acts 1881, ch. 38, § 276 (Spec.Sess.), found in Indiana Annotated Statutes § 2--1715 (Burns 1968 Repl.); therefore all of the evidence regarding the incident was necessarily circumstantial.

Page 604

Paragraph 6 of the complaint alleges the following acts of negligence on the part of Fulwider:

'a) Failing to stop for a duly posted stop sign on County Road 38 defore entering its intersection with Indiana Route 13.

'b) Failing to yield the right of way to the truck of the plaintiffs' which was to his right and close enough to constitute an immediate hazard if he failed to so yield.

'c) Failing to have and maintain a proper lookout for other automobiles lawfully upon Indiana Route 13 and in particular, the truck of the plaintiffs'.

'd) Failing to have and maintain his automobile under proper operating control so as to avoid colliding with the truck of the plaintiffs'.

'e) Driving his automobile at a rate of speed which was excessive for conditions then and there existing, to-wit: 40 m.p.h.'

[146 Ind.App. 59] The specifications of the motion for new trial are as follows:

'1. The verdict of the jury is not sustained by sufficient evidence.

'2. The verdict of the jury is contrary to law.

'3. Error of law occurring at the trial as follows:

'A. The court erred in refusing to withdraw specifications of negligence contained in rhetorical paragraphs 6(b), 6(c), 6(d) and 6(e) on the ground that there was no evidence of any such actions on the part of the defendant's decedent.

'B. The Court erred in giving to the jury, at the request of the plaintiff, the plaintiff's instructions numbered 1, 3, 4, 5 as amended, and 6 as amended, and to the giving of each of which instructions, the defendant duly objected within the proper time before argument.

'C. The Court erred in refusing to give to the jury, at the request of the defendant, each of the written instructions tendered and requested by defendant and numbered 2, 4 and 10.

'4. The Court erred in overruling defendant's motion made at the close of plaintiff's evidence to instruct the jury to return a verdict for the defendant.

'5. The Court erred in overruling defendant's motion made at the close of all the evidence to instruct the jury to return a verdict for the defendant.'

As argued by appellant, specifications numbered 1, 2, 3A, 4 and 5 of the motion for new trial, all concern the matter of the sufficiency of the plaintiffs' evidence insofar as it supports the verdict and judgment and more specifically, insofar as such evidence supports allegations of negligence 6(b) (c)(d) and (e) as contained in plaintiffs' complaint. The allegation concerning the failure of appellant's decedent to stop his vehicle at a duly posted stop sign, being paragraph 6(a) of the complaint, was withdrawn from the consideration of the jury.

It must be observed at the outset that it was not incumbent upon appellees to prove more than one allegation of negligence [146 Ind.App. 60] nor need such proof have been made by direct evidence. Beem v. Steel (1967), 140 Ind.App. 512, 224 N.E.2d 61; Ricks v. Emery (1962), 134 Ind.App. 182, 185 N.E.2d 546; Burks v. Walters (1957), 127 Ind.App. 358, 141 N.E.2d 872. Just as any other fact, negligence may be established by physical facts or circumstances. All facts surrounding the accident, together with the reasonable inferences to be drawn therefrom, must be considered in determining whether such fact is established by sufficient evidence. New York, Chicago and St. Louis R.R. Co. v. Henderson (1957), 237 Ind. 456, 146 N.E.2d 531,147

Page 605

N.E.2d 237; Cerra v. McClanahan (1967), Ind.App., 229 N.E.2d 737; Scutchfield v. Kull (1965), 138 Ind.App. 49, 210 N.E.2d 260; 3 I.L.E. Automobiles § 117, p. 476.

As stated in 12 Blashfield, Automobile Law & Practice (3rd ed. 1969), Section 437.5:

'It is not essential that eyewitnesses of the accident be produced nor that negligence be shown by direct testimony. Circumstantial evidence may constitute adequate proof of negligence. * * *'

Even more specifically to the point, the same treatise at Section 437.6 states:

'* * * The physical facts of an automobile collision may be sufficiently clear to enable the triers of fact to form a judgment of how the collision occurred and who was at fault, although there was no eyewitness to the collision.'

See also Ruspantini v. Steffek (1953), 414 Ill. 70, 110 N.E.2d 198.

Moreover, with reference to specification 3A of the motion for new trial it should be pointed out that if the evidence would permit reasonable men to differ as to whether or not the appellant's decedent committed any one of such acts alleged as negligence and if reasonable men could differ as to whether or not such act was, in fact, negligent then...