Standard Oil Co. of Indiana v. Thomas
| Decision Date | 08 March 1938 |
| Docket Number | 15632. |
| Parties | STANDARD OIL CO. OF INDIANA, Inc., et al. v. THOMAS. |
| Court | Indiana Appellate Court |
[Copyrighted Material Omitted]
Miller Miller & Bredell, of Indianapolis, and John W. Macy, of Winchester, for appellants.
Nichols & Nichols, of Winchester, and Clarence E. Benadum, of Muncie, for appellee.
This is an appeal from a judgment awarding damages to the appellee for personal injuries alleged to have been sustained by him in an automobile collision, as the result of negligent conduct on behalf of the appellants.
The issues consisted of a complaint in one paragraph and an answer in general denial. The cause was tried to the court and a jury. Appellants filed a motion for judgment on answers to interrogatories, and a motion for a new trial. The causes alleged for a new trial and not waived are: That the verdict was not sustained by sufficient evidence; that it was contrary to law; that the damages assessed were excessive error in giving to the jury each of instructions numbered 1, 2, 5, and 7 requested by appellee; error in giving to the jury each of instructions numbered 6, 9, 17, 18, and 20 by the court of its own motion; and error in refusing to give to the jury instruction numbered 20 tendered by the appellants. We will discuss the errors complained of in the order in which they are presented in appellants' brief.
The appellants submitted thirty interrogatories to the jury, with the request that it be required to answer them in the event it agreed upon a general verdict. Since substantially the whole force of appellants' contention, that the trial court erred in overruling their motion for judgment on the answers to the interrogatories, is dependent upon interrogatory numbered 10 and the answer thereto, it is unnecessary to extend this opinion by setting out all of the interrogatories and answers. Interrogatory numbered 10 and the answer thereto are as follows:
By answer to interrogatory numbered 4, the jury found that at the time of the collision, there was a stop sign located on the west side of the north and south highway on which appellee was driving, at a point approximately 100 feet north of the intersection of said road with state road No. 36, on which appellant Freidline was driving east, which sign was placed and kept there by the Indiana State Highway Commission; and by answer to interrogatory numbered 6, the jury found that the appellee, immediately before the collision, was driving south along the north and south road toward the intersection with state road No. 36, in a Ford automobile driven by himself.
The appellants insist, that since the jury found by its answer to interrogatory numbered 10 that the appellee failed to bring his automobile to a full stop before attempting to pass over the intersection as required by section 47-549, Burns' 1933, section 11182, Baldwin's Ind.St.1934, previous to its amendment by Acts 1937, p. 751, c. 126, § 2, he was guilty of negligence per se, which negligence contributed to appellee's injuries, and under such circumstances he cannot recover; that interrogatory numbered 10 and the answer thereto are in irreconcilable conflict with the general verdict.
Interrogatory numbered 11 and the answer thereto are as follows:
The appellants insist, that since the jury answered interrogatory numbered 10 in the negative, that it should not have answered interrogatory numbered 11 at all, and that it must be ignored in passing on their motion; but the jury did answer interrogatory numbered 11 and it, together with the answer thereto, are in the record before us.
In ruling on this motion we can consider only the pleadings, general verdict, the interrogatories, and answers thereto. The general verdict is a finding for the appellee on every material fact, and, to overthrow it, the answers to the interrogatories must be in irreconcilable conflict therewith. All interrogatories and answers thereto must be considered in determining whether judgment should be given on such answers. It is only when the interrogatories and answers thereto, taken and considered as a whole, are irreconcilable with the general verdict, that the former will overcome the latter. In determining whether there is a conflict in the general verdict and answers to interrogatories, every presumption and inference is resolved in favor of the general verdict. Nothing will be presumed or inferred in favor of answers to interrogatories as against the general verdict, and if answers to two or more interrogatories are inconsistent and antagonistic to each other, they nullify and destroy each other and cannot control the general verdict. Such conflicting answers must be disregarded in ruling on the motion. Citizens' St. Ry. Co. v. Hoop, 1899, 22 Ind.App. 78, 53 N.E. 244.
In answer to other interrogatories the jury found that the appellee was familiar with the intersection; that when he was twenty or forty feet north thereof and as he drove south, before entering upon the intersection he looked to the west for approaching traffic on state road No. 36; that when appellee did look west, appellant Freidline's truck was 300 or 400 feet west of the intersection, and that appellee could not see it because of fog and mist; that the appellee and appellant Freidline entered upon the intersection at about the same time; that when the appellant Freidline discovered that the appellee did not intend to stop at the intersection, he did not swerve his tank truck to the north in an effort to avoid hitting appellee's automobile; that the intersection was designated by the Indiana State Highway Commission as a stop intersection, and state road No. 36 was designated as a preferential highway; that as the appellee passed along the north and south highway he knew of the presence and purpose of the sign; that while the appellee looked to the west for approaching traffic from that direction, he did not see the tank truck of the appellant Freidline, because of the fog and mist; that when appellee first saw appellant Freidline's tank truck they were about twenty feet from each other; that when the appellee first saw appellant Freidline approaching from the west appellee did not observe Freidline make any effort to reduce the speed of his tank truck or give any indication of slowing down or stopping before entering upon the intersection; that when appellee entered upon the intersection he proceeded straight south over the same until the collision.
To sustain appellants' motion for judgment on the answers to the interrogatories, the conflict between the answers thereto and the general verdict must have been such that it could not be overcome by any evidence legitimately admissible under the issues, and was properly denied, unless the conflict between the answers and general verdict on some material question was beyond the possibility of being removed or reconciled by any evidence legitimately admissible under the issues in the cause.
The complaint alleged, in substance, that, as the appellee was driving his automobile south toward the intersection in question, he was driving at twenty miles per hour; that as he approached said intersection, and when about ten feet north thereof, at a point where he could see along and over state road No. 36 in an east and west direction, he brought his automobile to a stop, looked to the west for vehicles approaching from that direction toward said intersection, and, seeing and hearing none, immediately looked to the east for vehicles approaching from that direction toward said intersection, and seeing and hearing none proceeded to drive across same at the rate of speed of ten miles per hour; that he sounded his automobile horn before entering the intersection, and continued to sound it as he proceeded across the same; that when he had traveled to the south across said state road No. 36, the traveled portion of which was twenty-five feet wide and was south of the center line thereof, the appellant Freidline drove a large, heavy tank truck loaded with gasoline, coal oil, and other oils from out a dense and heavy fog, in an easterly direction, at a rate of speed of forty-five miles per hour, striking appellee's automobile; that at the time of the accident, and long before, the appellant Freidline well knew that many lateral roads intersected state road No. 36; that they were much used and traveled by persons and vehicles coming into and going off said state road No. 36; that the appellant Freidline failed to sound his automobile horn or give any signal of any kind; that he was approaching said intersection in the dense and heavy fog that prevailed at said intersection at the time while operating his tank truck at the high rate of speed aforesaid. These facts, provable under the issues, should be added to the facts found by the jury in answer to the interrogatories, in passing upon this motion. Rhodius v. Johnson, 1900, 24 Ind.App. 401, 56 N.E. 942; § 1897, 2 Watson's Works Practice, p. 471.
While as contended by appellants, the failure of appellee to bring his automobile to a full stop as provided by section 47-549, section 11182, supra, before entering upon the intersection, may have been negligence per se, this fact, of itself, would not preclude the appellee from recovery, unless it further appeared from the facts and circumstances disclosed by...
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