Superior Meat Products v. Holloway

• Decision Date: 30 April 1943
• Docket Number: 16919.
• Citation: 48 N.E.2d 83,113 Ind.App. 320
• Parties: SUPERIOR MEAT PRODUCTS, Inc., et al. v. HOLLOWAY.
• Court: Indiana Appellate Court

48 N.E.2d 83

113 Ind.App. 320

SUPERIOR MEAT PRODUCTS, Inc., et al. v. HOLLOWAY.

No. 16919.

Appellate Court of Indiana, in Banc.

April 30, 1943

Hulbert & Marlatt, of Gary, for appellant.

Crumpacker & Friedrick, of Hammond, for appellee.

DOWELL Judge.

This was an action brought by appellee, plaintiff below, as administratrix of the estate of John Holloway, deceased, for the benefit of the next of kin of the decedent to recover damages for the wrongful death of decedent who died as the result of injuries received in a collision between the automobile driven by decedent and a meat truck operated by appellant Einikis which occurred on September 12, 1939, at a street intersection in the City of Gary, Indiana. Liability was predicated upon alleged negligence of appellant Einikis as agent, servant and employee of appellant, Superior Meat Products, Inc., in the operation of the meat truck during the usual and ordinary course of his employment by said Superior Meat Products, Inc.

Trial was by jury and from judgment on the verdict for appellee in the sum of $5,000 appellant appeals.

The sole error assigned is the overruling of appellant's motion for a new trial, which questions the sufficiency of the evidence to sustain the verdict and asserts that the verdict is contrary to law.

A review of the evidence in the light most favorable to the appellee discloses the following facts:

The collision occurred at the intersection of Jefferson and 42nd Streets in the City of Gary. Jefferson Street was, at the time, a three-lane concrete highway about 28 feet wide running in a north and south direction. Each side of the street was bounded by a curb six inches high and beyond the curb, on both sides of the street were cement sidewalks five feet in width. It was a residential street. Forty-second Street was a gravel road about twenty feet wide running in an east and west direction. It had no curbing nor sidewalks, nor were there any residences on either side near the point where it intersected Jefferson Street. At a point approximately one block west of the intersection the grade of 42nd Street was elevated a number of feet above the grade at the intersection and the street sloped downward from said point to its intersection with Jefferson Street, the place of collision. Neither Jefferson Street nor 42nd Street were preferential highways and there were no stop signs or traffic lights at the intersection. One block immediately north of the intersection Jefferson Street came to a dead end at 41st Street. Jefferson Street was a level, heavily traveled paved highway while 42nd Street was a lightly traveled cross street. From a point on 42nd Street fifty feet west of the intersection the view to the south down Jefferson Street was clear so that a person in an automobile or a truck at such point could see for more than half a block south down Jefferson Street.

On the morning of September 12, 1939, John Holloway, who lived on Jefferson Street about two blocks south of the intersection herein described left his home at about 8:05 o'clock to drive to work. He drove his automobile north on Jefferson Street until he reached the said intersection. As he entered the intersection a loaded meat truck weighing about 8,500 pounds, driven by appellant Einikis and proceeding down grade in an easterly direction on 42nd Street, entered Jefferson Street and struck Holloway's car at the left rear portion thereof. As a result thereof the Holloway car was thrown against the cement curbing on the east side of Jefferson Street where the right rear wheel was broken and the car upsetting, rolled or slid a distance of about sixty feet north on Jefferson Street. Holloway was thrown from the car and was unconscious when taken to the hospital where he died five days later without regaining consciousness.

There were no witnesses to the collision other than appellant Einikis. Three policemen arrived within a few minutes after the collision and examined the condition of the two vehicles the markings on the streets and curbing and the general physical conditions about the scene.

At the time of the collision appellant Einikis, who was a meat seller, was traveling a regular territory delivering meat which he had obtained from appellant Superior Meat Products Inc. The truck which he was operating was painted yellow and bore a sign "Superior Meat Products."

The policemen who arrived on the scene shortly after the collision testified that the left rear fender of the Holloway car bore the imprint of a bumper and bits of yellow paint and that the right front fender of the truck had been mashed, the bolt which held the bumper to the bracket broken off and that yellow paint had been rubbed or scraped from the radiator grill. Their further testimony was that they found skid marks ten or twelve feet in length in the loose gravel of 42nd Street and that these marks extended eastward to a point approximately three feet west of the center line of the intersection and that these were the only skid marks about the scene; that when they arrived they found the truck facing eastward and stationary at a point northeast of the center of the intersection.

The appellant Einikis testified that the truck had been registered in the name of Superior Meat Products Company continuously since 1935 and that he himself carried a chauffeur's license instead of an operator's license; that the signs which the truck bore were placed thereon by the Superior Meat Products Company. The evidence further showed that Einikis had a regular route assigned to him by the Superior Meat Products Company and that he was traveling a portion of this route at the time of collision.

Appellant complains that the evidence is insufficient to show that the Holloway car was actually struck by the truck and insists that the testimony by Einikis was the only evidence on the subject; that Einikis testimony was that the Holloway car, driven at a speed of from 50 to 60 miles per hour, swerved in the intersection and side-swiped the truck after it had come to a full stop on the west side of the intersection.

It is true that Einikis so testified and that his was the only eye witness testimony on the subject; it is likewise true, however, that Einikis also stated that he did not know how fast the Holloway car was traveling; and that he did not bring the truck to a full stop before the moment of impact; but we believe that counsel has fallen into the common error so frequently indulged in by lawyer and layman alike, i. e., the failure to observe the distinction between the words "testimony" and "evidence."

Although quite often used interchangeably the terms "testimony" and "evidence" are not synonymous. Testimony is evidence; but evidence may or may not be testimony, or may, and in most cases does, consist of more than testimony. The word "testimony" is a restricted term, consisting only of the statements of witnesses; while the word "evidence" is a comprehensive term, embracing not only testimony, but whatever may properly be submitted to a court or jury to elucidate an issue or prove a case. Harris v. Tomlinson et al., 1891, 130 Ind. 426, 30 N.E. 214; Ingel v. Scott, 1882, 86 Ind. 518; Central U. Telephone Co. et al. v. State ex rel. Board Com'rs of Tippecanoe Co., 1886, 110 Ind. 203, 10 N.E. 922, 12 N.E. 136; Crooks v. Harmon, 1905, 29 Utah 304, 81 P. 95.

In the case at bar the jury had before it, in the way of evidence not only the testimony of Einikis, but the testimony of others as to physical conditions in and about the place of collision, photographs disclosing other physical conditions, such as the condition of the vehicles after the collision, that of the streets and intersection, the grade and character of the surfaces thereof, testimony as to the imprint of a bumper on the Holloway car, the yellow paint clinging thereto, the location of the truck shortly after the...