Szlafrak v. Donaldson, 570A80
| Decision Date | 30 June 1971 |
| Docket Number | No. 2,No. 570A80,570A80,2 |
| Citation | 149 Ind.App. 200,271 N.E.2d 170 |
| Parties | Lois SZLAFRAK, Appellant, v. Betty O. DONALDSON, Appellee |
| Court | Indiana Appellate Court |
Myron J. Hack, Robert L. Stephan, South Bend, for appellant.
R. Kent Rowe, South Bend, for appellee.
This is an appeal from a judgment based on a defendant's verdict directed by the trial judge. Plaintiff-appellant, a pedestrian admittedly voluntarily intoxicated, was in the east-bound traffic lane of LaSalle Street, South Bend, at night time when she was struck and injured by an east-bound automobile being driven by appellee-defendant. Pursuant to a pre-trial order the case was tried on the theory of last clear chance. Remarks by the trial judge at the time he directed the verdict disclose that he was convinced that there was no evidence on which the jury could have found that defendant, when she discovered plaintiff in a position of peril could have avoided the collision. In the trial court's words, 'there is absolutely no evidence upon which the Jury could make a determination that having discovered the Plaintiff * * * (in) a position of peril, that she had the time to do anything about it.' 1 Appellant not only asserts that the trial court was in error in directing the verdict, but that it also committed reversible error by sustaining defendant's objection to a question when defendant's deposition, taken by plaintiff, was read into evidence. We find no reversible error in either ruling.
Since plaintiff-appellant remembers nothing which occurred after she started to cross the street, substantially all the evidence bearing on the question of whether defendant-appellee did have the last clear chance to avoid the injury as to be found in defendant's testimony. Her pre-trial deposition was read by plaintiff at the trial and she was also called to the witness stand and questioned by plaintiff's counsel on direct examination during the trial. So far as pertinent to the problem, her testimony by deposition was:
Defendant was returning home from playing cards at a friend's home. The night was cold but there was no snow. The mist was heavy and the pavement was wet. She was driving east on LaSalle Street and stopped at a red light one block west of the intersection of LaSalle and St. Louis where the accident occurred. As she started up and drove to the point of accident she was looking straight ahead, and traveling twenty-five to thirty miles per hour.
At this point it becomes impossible to make a meaningful and fair statement of her testimony in narrative form. The questions and answers read from the pre-trial deposition which bear directly on the time interval between discovery and collision are:
'Q Can you tell us exactly how this accident occurred? When did you first see the pedestrian, to start with?
A Well, she turned and looked at me. I saw her standing there.
Q And where was she and where were you when you saw her?
A Well, about approximately two car lengths across the intersection.
Q Two car lengths across the intersection?
A Yes.
Q And when you say you saw her, the two car lengths you mentioned, that was about how far away that the front of your car was from her?
A That's how far I was across the intersection.
Q Two car lengths across the intersection?
A Approximately, yes, south.
Q Let me put it this way: Did you see the pedestrian at any time before you collided with her?
A No.
Q You didn't see her until after she had been struck, is that it?
A No, I looked--I was driving, and there she was, and she turned and looked at me, and there she was.
Q I believe you said that upon seeing her, she looked at you and then you applies your brakes, is that correct?
A Yes.
Did you then also steer your vehicle to the left?
A I stopped dead still, just stopped. The brakes stopped. The brakes stopped, but I don't remember.
Q And I believe you said you were going about 30 miles an hour?
A Yes.
Q Did you steer your vehicle to the left as you were braking?
A I don't remember.
Q. Upon applying your brakes, did they function properly; that is, did they work properly mechancially?
A Yes.
Q What if anything transpired with respect to the wheels; did they lock and a skid develop?
A I don't remember.
Q Upon seeing the pedestrian and prior to the impact, did you sound your horn at any time?
A I can't say, because I don't remember.
Q To summarize, I think you said you looked, and there she was, and you applied your brakes?
A Yes.
Q And then the collision occurred?
A. Yes.'
When she was called to the stand and testified in court, her testimony pertinent to the time interval was this:
'Q. When did you first see the pedestrian in question?
A It happened in a split second. I am driving one second, she wasn't there, the next half a second she was there and I hit my brakes.
Q Now, as you came down East LaSalle Street, can you tell jury, can you place on that diagram there where Mrs. Szlafrak was located when you first saw her?
A When I first saw her?
A It was a split second, it was so fast. I had crossed the intersection and approximately here (indicating), approximately, I can't give you a definite thing. I had crossed the intersection, I know, and I saw her and I hit my brakes, but there were cars all along this side of the street. (indicating).
Q She already had removed herself, had she not, from where the cars were parked?
A She was just stepping, I believe. It happened so fast I can't tell you exactly because I couldn't see her.
Q I didn't quite understand you. Did you say that she was stepping, I believe. Do you know whether or not she was stepping or whether she was stationary?
A I don't know, it happened so fast. It all happened in a split second, I couldn't tell you.
Q Did you ever see her move at all?
A I don't remember; I just don't remember.
Q Were you able to notice any movement of her head?
A It seems as though she--when I looked at her she was looking right at me.
Q You saw her eyes, did you?
A I saw her face.
Q And how long a time was your sight placed upon her face?
A I couldn't tell you that. As soon as I saw her face I hit my brakes.
Q Do you know how quickly you reacted after you saw Mrs. Szlafrak.
A Right away to my knowledge.
Q In terms of seconds, how much or how long would right away mean?
A Split second.
Q One whole second or two whole seconds?
A It was so fast--I'll say a split second when I hit my brakes. I hit them right away.
Q Your car was moving thirty miles an hour?
A Between twenty-five and thirty.
Q Would it be fair to say that the split second time that it took you when you first observed Mrs. Szlafrak until you were able to put your foot on the pedal, the car went a distance of eight feet?
A It skidded.
Q I'm talking about before you hit the brakes?
A I don't know, I couldn't tell you. I hit my brakes right away.
Q I don't believe that you understand my question.
A I don't.
Q I'm not trying to be difficult Mrs. Donaldson. You said that it was a split second before you were able to hit you brakes. That is normal would it not be?
A I imagine.
Q No one can move simultaneously?
A No.
Q This is a simple element when you first see and observe and (sic) object before you get your foot to move up to the brake pedal, is it not?
A Yes.
Q Another time element before you're able to depress or push in on the brake pedal, right?
A Yes.
Q Admittedly, this or these are small motions of time?
A Right.
Q And would you say to the best of your recollection this would be a split second, right?
A That is right.
Q Before you applied your brakes, may there be a time when you froze? (objection by Appellee's counsel overruled)
A Well, I wouldn't exactly say that I froze. Maybe I used the phrase 'froze' in that split second and I hit my brakes and stopped and I probably sat there and I probably did freeze for half a second, but I immediately got out of the car to see about her.
Q You say that you used that phrase?
A In my explanation of things I think that I froze, but I never lost control of the car.'
Defendant-appellee has correctly stated the test a trial court must apply when deciding whether to direct a verdict. It is found in Sparks v. Baldwin (1965), 137 Ind.App. 64, 68, 205 N.E.2d 173, 176, as follows:
'The law is that 'a verdict should be directed where there is a total lack of substantial evidence of probative value, a total lack of evidence not being required.' Flanagan, Wiltrout and Hamilton, Indiana Trial and Appellate Practice, 1963, Pk. Supp., § 1661, Comment 1. Further, our Supreme Court, in Whitaker, Admur. v. Borntrager (1954), 233 Ind. 678, 122 N.E.2d 734, cited with approval authorities which have held that a directed verdict in favor of a defendant is proper 'where the evidence is without conflict and is susceptible of but one inference and that inference is in favor of the defendant." (Emphasis in original.)
It must be noted that want of conflict in the evidence standing alone is insufficient to justify the direction of a verdict. Such evidence must also be susceptible of but one inference--an inference favorable to the defendant. As was said in a different context in Cole v. Sheehan Construction Company (1944), 222 Ind. 274, 280, 53 N.E.2d 172, 175:
2
A witness need not make inconsistent statements for there to be a conflict in his testimony. Such conflicts suually arise out of the possibility that the same statement may convey entirely different meanings to different listeners depending on the inference drawn by the listender. If the statement is susceptible of two or more reasonable inferences, there is a conflict in the testimony.
In ruling on the motion for directed verdict all conflicts in the...
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