Storckman v. Keller
| Decision Date | 18 June 1968 |
| Docket Number | No. 20775,No. 1,20775,1 |
| Citation | 237 N.E.2d 602,143 Ind.App. 43 |
| Parties | Stanley Lee STORCKMAN, Appellant, v. Dwain KELLER, Appellee |
| Court | Indiana Appellate Court |
Williams & Williams, Covington, for appellant.
James B. Wallace, Don P. Campbell, Wallace & Wallace, Covington, for appellee.
This action was instituted by plaintiff-appellant seeking damages for the death of appellant's son who was a passenger in an automobile owned and being operated by defendant-appellee. Appellant alleged that appellee was wilfull and wanton in that he operated the automobile at a speed of 50 miles per hour, 'replaced the cap screws that were originally used to fasten the steering gear to the frame of said 1951 Ford as aforesaid by three bolts and three nuts of smaller diameter and less tensile strength than the original cap screws on said automobile.' As a result the bolts sheared in two parts rendering the steering mechanism of the automobile incapable of control causing it to run off the highway and against a tree. The complaint further alleged that the defendant-appellee knew that the steering mechanism was fastened to the frame by bolts which were of insufficient size and tensile strength to adequately control the steering of the automobile which fact was unknown to appellant's deceased son.
The issues were closed by appellee's answer and evidence was submitted to the court without a jury. At the close of appellant's evidence the appellee moved for a finding in his favor which was granted. Judgment was duly entered that plaintiff-appellant take nothing by his complaint. Appellant's motion for new trial was overruled and is the error assigned on this appeal. The specifications of the motion for new trial not waived are that the finding and decision of the court was contrary to law; error in sustaining appellee's motion for finding for the appellee; and error in excluding certain evidence.
In sustaining appellee's motion for a finding in his favor at the close of plaintiff-appellant's evidence the court in effect found that plaintiff-appellant had failed to make a prima facie case. We will uphold this ruling if the evidence most favorable to the appellant, or reasonable inferences therefrom, fail to support one or more of the material allegations of the complaint essential to recovery. Boswell v. Washington (1967), Ind.App., 221 N.E.2d 184, 185 (Transfer denied).
It appears from the evidence most favorable to the appellant against whom the verdict was directed that approximately one and one half months prior to the accident the defendant-appellee noticed that the threads on three bolts in the steering mechanism of his car were badly worn. In order to correct this condition the appellee placed new bolts in the mechanism which were about one-sixteenth of an inch smaller than the original bolts had been. On the day before the accident occurred the appellee noticed by inspection that the replaced bolts had become loose so he tightened them with a wrench. After working on the car he and another companion drove it for a short time, neither of them noticing any complications with the handling of the car. The next day, while appellee and deceased were riding together in the car, it went out of control and crashed into a tree beside the road, inflicting injuries which resulted in the death of deceased.
The appellant herein, who is the father of the deceased, testified as an expert witness in the field of automobile maintenance and equipment that the faulty steering mechanism, due to the wearing on the replaced bolts, was the sole proximate cause of the accident.
Assuming this to be true and drawing all reasonable inferences presented by the evidence most favorable to app...
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...in accepting or rejecting the item should only be reversed on appeal where a clear abuse of discretion is shown. Storckman v. Keller (1968), 143 Ind.App. 43, 237 N.E.2d 602. Our Supreme Court has traditionally held that admission of such evidence will be sustained so long as it has a tenden......
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