Swanson v. Slagal

• Decision Date: 08 June 1937
• Docket Number: 26829.
• Citation: 8 N.E.2d 993,212 Ind. 394
• Parties: SWANSON v. SLAGAL.
• Court: Indiana Supreme Court

8 N.E.2d 993

212 Ind. 394

SWANSON v. SLAGAL.

No. 26829.

Supreme Court of Indiana

June 8, 1937

Appeal from Allen Circuit Court; C. R. McNabb, Judge.

Kane, Blain & Hollowell, of Indianapolis, Call & Call, of Gary, and Chas. B. Salyer, of Anderson, for appellant.

Arthur W. Parry and Merl A. Barnes, both of Fort Wayne, for appellee.

TREANOR Judge.

This was an action by the appellee, Leona Slagal, administratrix of the estate of Oscar Slagal, deceased, against the appellant to recover damages for the death of appellee's decedent.

The appellee's decedent and one Kaywood were driving and operating a truck from Chicago to Fort Wayne over State Road No. 30. Slagal and Kaywood alternated as drivers of the truck, and at the time of the accident, and prior thereto Kaywood was driving the truck and Slagal was sleeping.

Appellant was driving his car on State Road No. 30 from the east and as he was entering a bridge his car overturned on the bridge. A few minutes later the truck approached the bridge from the west and ran into the automobile which was upset on and near the west end of the bridge. Just before the truck entered the bridge the driver saw a Mr. Jarvis, a companion of the appellant, standing between the automobile and the approaching truck and waving his arms. The truck knocked the automobile some distance, caught up with it, struck it again and passed around it and continued on through the bridge where the tractor and part of the semitrailer went off the road and caught fire. After the fire was extinguished, Oscar Slagal, the appellee's decedent, was found dead in the truck.

The essential elements of the complaint are as follows:

'That as the defendant approached, guided and controlled his said automobile in a careless, negligent and reckless manner, in that said defendant operated and drove his said automobile at a rate of speed greater than was reasonable or prudent, having regard to the width, location and condition of the highway at said point, the condition of the weather and darkness at said time, and in such manner as to endanger the life and limb and injure the property of other persons using said highway at said point at said time, to-wit, in excess of fifty miles per hour, and in that said defendant did not then have his said automobile under reasonable control;

'And plaintiff further says that the said defendant, still continuing at said high, dangerous and reckless rate of speed, as aforesaid, and without having his machine under reasonable control, approached the point where said highway crossed said Deep River and so negligently, carelessly and recklessly propelled, operated, guided and controlled his said automobile that by reason of and through said carelessness, negligence, and recklessness of said defendant, the automobile driven by said defendant struck the said bridge over Deep River, or some part thereof, and was thereby damaged, wrecked and thrown and placed upon and across the said highway on said bridge, thereby blocking said highway so that vehicles approaching said bridge and crossing said bridge in an easterly direction could not pass the point where the defendant's said automobile lay on said bridge without striking it and the defendant then and there, well knowing that said highway was a hard surfaced road, carrying much traffic and greatly traveled, and that other motor vehicles were likely to be passing said point at any moment, nevertheless, carelessly, negligently and recklessly omitted to give or cause to be given any warning to approaching vehicles of the blockade of said highway and bridge as aforesaid, but carelessly and negligently permitted his said automobile to remain on said bridge at said point blocking said highway without any lights thereon and without giving any notice to other vehicles approaching said bridge.'

The plaintiff's demurrer to defendant's amended plea in abatement was sustained by the trial court, and defendant's motion to make more specific and his demurrer to plaintiff's complaint were both overruled by the trial court. The case was tried before a court and jury, and the jury returned a general verdict in favor of appellee in the sum of $10,000. Defendant's motion for judgment on the interrogatories and answers thereto, as well as his motion for a new trial, were overruled. Judgment was entered in favor of plaintiff below and against defendant in the sum of $10,000.

Under his 'Propositions and Authorities' appellant urges as proposition 1 that, 'The Allen Circuit Court erred in overruling appellant's motion for a new trial for the reason that the verdict is not sustained by sufficient evidence,' and as proposition 2 that, 'The Allen Circuit Court erred in overruling the appellant's motion for a new trial for the reason that the verdict of the jury is contrary to law.' The same reasons and authorities are relied upon to support both propositions. The gist of appellant's argument seems to be as follows:

1. The cause of action, relied upon by plaintiff below, and as described by the allegations of the complaint, consisted of two acts of negligence which are 'alleged as dependent acts and in the conjunction.'

2. It was necessary for plaintiff below to prove all the facts alleged as constituting the two dependent and conjunctive acts.

3. It was necessary to prove that all the dependent and conjunctive acts alleged were the proximate cause of the death of decedent.

4. Appellant contends that the evidence is not sufficient to establish either than the defendant committed the two dependent conjunctive acts of negligence or that the death of plaintiff's decedent was the proximate result of the combined effect of the alleged acts of negligence.

The general rule is well settled that when a complaint in one paragraph properly charges two or more acts of negligence, proof of the occurrence of one of such acts will warrant a recovery if the evidence justifies the conclusion that such act was the proximate cause of the injury. If the acts which are pleaded in the complaint are so interdependent that the conduct complained of could not have constituted actionable negligence in the absence of any one or more of the alleged acts, it is necessary for the plaintiff to establish the occurrence of all the acts and that the joint effect of the acts was to occasion the injury. ^[1] But the foregoing rule does not apply when 'numerous negligent acts are alleged any one of which might have produced the injury complained of.' ^[2] The complaint alleges facts which are sufficient to charge that the defendant, by his negligent operation of his automobile, caused the same to be wrecked and thrown upon and across the highway on the bridge and thereby blocked the highway, so that vehicles approaching the bridge and crossing the bridge in an easterly direction could not pass defendant's automobile without striking it; and that the defendant, with knowledge of the peril to vehicles, 'carelessly, negligently and recklessly omitted to give or cause to be given any warning to approaching vehicles of the blockade of said highway and bridge as aforesaid, but carelessly and negligently permitted his said automobile to remain on said bridge at said point, blocking said highway, without any lights thereon, * * * and that by reason of and through the said negligence, carelessness and recklessness of said defendant, as above alleged, the motor vehicle in which said Oscar Slagal was then and there riding, collided with the automobile of the defendant and was thrown upon and against a portion of said bridge.' It is clear from the foregoing that the complaint charges two acts of negligence and that the accident out of which the injury arose could have resulted from either without the existence of the other.

Consequently, if the evidence is sufficient to establish the existence of either one of the acts of negligence and of a causal connection between the act which is established and the injury complained of, the verdict of the jury was sustained by sufficient evidence and was not contrary to law.

Appellant insists that there was no evidence that he was operating his automobile at a high rate of speed or that high speed caused his automobile to strike the bridge. It is true that the defendant testified that he was driving his automobile at a speed of 30 to 35 miles per hour and that he slowed down to 20 or 25 miles per hour as he approached the bridge; and the defendant testified that his automobile skidded and struck the bridge and that the skid was caused by ice in the entrance to the bridge, 'or by the driver being confused by another road leading off, or to both.'

There were, however, circumstances from which the jury reasonably could have inferred that appellant was driving at a much greater speed than 30 to 35 miles an hour when he entered the bridge. Also, there was testimony which indicated that there was no ice at the entrance to the bridge. Appellant entered the bridge from the east, and the evidence justified the jury's concluding that his automobile crashed into the iron railing or guard of the bridge at a point 5 or 6 feet from the east end. The bumper of his car was found in the creek immediately below the point where the iron railing or guard was struck. The jury reasonably could have concluded that his automobile then rebounded across the bridge to the north side and struck the iron guard or rail on the north, or right, side of the bridge about 35 feet west of the point where it had collided with the iron railing on the south side of the bridge; and that the automobile was then upset and came to rest at a point 10 to 15 feet from the west end of the bridge and 60 to 70 feet from the point where is first collided with the bridge; and that when it finally...