Stull v. Davidson

• Decision Date: 10 June 1955
• Docket Number: No. 18578,18578
• Citation: 125 Ind.App. 565,127 N.E.2d 130
• Parties: Claudine STULL, Appellant, v. Rotha C. DAVIDSON and James R. Davidson, Appellees.
• Court: Indiana Appellate Court

Page 130

127 N.E.2d 130

125 Ind.App. 565

Claudine STULL, Appellant, v. Rotha C. DAVIDSON and James R. Davidson, Appellees.

No. 18578.

Appellate Court of Indiana, In Banc.

June 10, 1955.

Kiser & Neu, Plymouth, Scheer, Scheer & Ettl, John W. Pfaff, South Bend, for appellant.

Paul M. Butler, William E. Mills, Jones, Obenchain & Butler, South Bend, Albert B. Chipman, Plymouth, for appellees.

BOWEN, Judge.

This is an appeal from a judgment in an action for damages upon a complaint brought by the appellant, Claudine Stull, against the appellees, Rotha C. Davidson and James R. Davidson, seeking to recover for alleged personal injuries sustained in an automobile collision which occurred at the intersection of two public streets in South Bend, Indiana. Issues were joined upon appellees' answer of denial and affirmance to appellant's complaint, with an additional paragraph of answer charging negligence on the part of Lloyd W. Stull, the driver of the automobile in which his wife, the appellant, was a passenger; and that his negligence was the sole proximate cause of the collision and injuries sustained by the appellant; to which paragraph appellant filed a reply denying the allegations of the answer.

The cause was tried to a jury, and the jury returned its verdict against the appellant and in favor of appellees, and that appellant take nothing by her complaint. The jury, in response to proper request for the same, also returned answers to certain interrogatories at the same time it returned its verdict. Judgment was rendered on the jury's verdict in favor of appellees and against the appellant, and that appellant take nothing by her complaint.

The appellant filed her motion to set aside the verdict of the jury, which motion was overruled by the court. Thereafter, the appellant filed her motion for a new trial, which was overruled by the trial court and this appeal followed.

Error assigned for reversal is the action of the trial court in overruling appellant's motion for a new trial, and in overruling appellant's motion to set aside the verdict of the jury. Grounds of appellant's motion for a new trial, not specifically waived, or waived by a failure to present the same in appellant's brief, are, that the court erred in refusing to give to the jury certain instructions tendered by the appellant, and that the court erred in giving certain instructions tendered by the appellees, and that the appellant was harmed by the submission to the jury of certain interrogatories.

Appellant, in her brief, has specifically waived the specifications of error that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. Appellant's motion to set aside the verdict of the jury was based upon the grounds that the general verdict was in irreconcilable conflict with the answers to the interrogatories. However, appellant has not urged such assigned error in her brief that the trial court erred in overruling appellant's motion to set aside the verdict of the jury, either as a separate assigned error or as a ground of her motion for a new trial, and therefore, has waived such question in this appeal. Costa v. Costa, 1953, Ind.App., 115 N.E.2d 516; Rule 2-17(f), Rules of Supreme Court of Indiana.

From the record it appears that the accident occurred at the intersection of two public streets in the City of South Bend, Indiana. Ironwood Drive is the dividing line between Mishawauka and South Bend and runs in a northerly and southerly direction, and Ewing Avenue runs in an easterly and westerly direction. Appellant-plaintiff was a passenger in a car driven by her husband, which was a 1947 Studebaker Commander automobile, which approached Ewing Avenue on Ironwood Drive from the north traveling south, and the 1950 Studebaker Commander automobile in which the appellees-defendants were riding was traveling in an easterly direction on Ewing Avenue. The two cars collided at the intersection. After the accident the black Studebaker driven by plaintiff-appellant's husband came to rest about twelve feet south of the southeast curbline of Ironwood Drive. The right front wheel was in the gutter. The defendants-appellees' car was facing southeast on Ironwood Drive about eighteen or twenty feet back or north from the appellant's car. Damage to the car in which appellant was riding consisted of damage to the right front bumper, right front head light, right front wheel, and the windshield was shattered. The defendants-appellees' car was a total wreck and defendants-appellees were knocked out of the car and rendered unconscious. The parties, both plaintiff and defendants, suffered serious personal injuries.

From the evidence most favorable to the appellees it appears that the car in which appellant was riding, driven by her husband, was driving at a high rate of speed, which speed attracted attention to disinterested eyewitnesses as it approached the intersection; that it did not slacken its speed as it approached the intersection and crashed into the car of the appellees. Appellant's husband, driver of such car, testified that as he approached the intersection he would have had to apply his brakes to stop at the intersection and when he stepped on his brakes the pedal went to the floor and his car kept on going. He stated it was free wheeling; he had no place to go or nothing to do and he ran out in the pavement. He stated that at the time his brakes failed him, he looked in both directions, and saw a car coming from the right. At the time he saw this car coming from the right, he was about twenty feet back from the intersection. The car coming from the right was then about 100 feet back from the intersection when he first saw it. He testified that he just got out on the pavement and his car was struck in the right front wheel and on the right front side from the right front fender back to the body.

The appellee, Rotha C. Davidson, testified that as she approached the intersection she slowed down about a half block from the intersection to about ten miles an hour to see if some friends were at home; that before she got to the intersection she did not see any car coming from the north and there were no cars coming from the east toward this intersection; and that the first thing that attracted her attention was 'this big black blur coming at me', after she had already gotten into the intersection.

One witness testified that she couldn't very well judge the speed of the Stull automobile. She stated, 'It was going fast. About like if a cop was chasing somebody--if you know how fast that is.' She also stated that the automobiles were across Ewing after the accident.

The evidence showed that there were weeds and obstruction, including a mound of dirt, at the northwest cornet of the intersection, which constituted some obstruction of view of the appellees.

The evidence most favorable to appellees established that Mrs. Davidson drove her automobile at a speed of twenty-seven to twenty-nine miles per hour immediately before the collision. Witnesses estimated the speed of the car in which appellant was riding at the intersection at 'fifty miles per hour or more' and that it did not slow down nor stop at the stop sign at the approach to the intersection from the north. The answer to the jury of interrogatories showed no negligence on the part of appellee, Rotha Davidson.

Appellant has assigned error in the giving of appellees' instructions numbered 6, 7 and 8. The objections to these instructions are based upon the same general proposition by which it is claimed that there it no evidence in the record that the stop sign at this intersection was erected pursuant to any law or pursuant to any ordinance of the City of South Bend, and that the acts referred to in such instructions apply only to streets and highways which have been declared through or preferential by an act of the City Council or of the State Highway Commission. The appellant further claims that such instructions constitute abstract statements or propositions of law with no effort to apply them to the evidence in this case. A further specification is made as to instruction No. 8 in that it omits the word 'sole'. Without passing upon the question whether such word was necessary, it appears that the instruction complained of contains such word which the appellant insists was omitted.

The general rule is well established by the great weight of authority in this country that where there is evidence of the existence of a highway stop sign and the record is silent as to the person or persons who erected it there, it is to be presumed that the sign had been legally erected and that anyone disputing it has the burden of offering proof to counteract such presumption. Graham v. Dressen, 1937, 292 Ill.App. 15, 10 N.E.2d 843; Rogers v. Jefferson, 1938, 223 Iowa 718, 272 N.W. 532, 277 N.W. 570; Bartlett v. McDonald, 1937, 59 Ohio App. 85, 17 N.E.2d 284; Blashfield, Cyclopedia of Automobile Law and Practice, Vol. 9B, § 6041, p. 422. See also Smith v. Kurtz, 1938, 34 Pa.Dist. & Co.R. 439; Annotation, 164 A.L.R. 213. Also, it is provided by statute in this state, § 47-2238(e), Burns' 1952 Replacement, '* * * in all civil actions oral evidence of the location and content of such signs or markings (stop signs) shall be prima facie evidence of the adoption and application of such restrictiom by the commission of the validity thereof'. (Our parenthesis.)

Furthermore, an examination of the record discloses that appellant's husband, and witness for her, testified that Ewing Avenue was a preferential street and that he was familiar with the intersection of Ewing Avenue and South Ironwood Drive, and that he knew there was a stop sign there. In cross-examination he testified that he knew there was a stop sign there and that he had lived in South Bend 64 years and knew that Ewing Avenue was a preferential street. Appellant tendered two instructions in which reference was...